Com. v. Pedro, M. ( 2023 )

J-S35014-22 & J-S35015-22
NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
COMMONWEALTH OF PENNSYLVANIA : IN THE SUPERIOR COURT OF
: PENNSYLVANIA
:
v. :
:
:
MITCHELL EDWARD PEDRO :
:
Appellant : No. 1680 MDA 2021
Appeal from the Judgment of Sentence Entered November 2, 2021
In the Court of Common Pleas of Sullivan County Criminal Division at
No(s): CP-57-CR-0000063-2019
COMMONWEALTH OF PENNSYLVANIA : IN THE SUPERIOR COURT OF
: PENNSYLVANIA
:
v. :
:
:
MITCHELL EDWARD PEDRO :
:
Appellant : No. 1685 MDA 2021
Appeal from the Judgment of Sentence Entered November 2, 2021
In the Court of Common Pleas of Sullivan County Criminal Division at
No(s): CP-57-CR-0000026-2019
BEFORE: BENDER, P.J.E., McLAUGHLIN, J., and STEVENS, P.J.E.*
MEMORANDUM BY BENDER, P.J.E.: FILED: MARCH 7, 2023
Mitchell Edward Pedro appeals from the judgment of sentence of 27 to
72 months of incarceration entered following his convictions for three counts
____________________________________________
* Former Justice specially assigned to the Superior Court.
J-S35014-22 & J-S35015-22
of home improvement fraud.1 We affirm but remand for entry of a corrected
judgment of sentence order imposing the recidivism risk reduction incentive
(“RRRI”) minimum sentence as required by law.
The following facts pertain to the charges filed at docket CP-57-CR-
0000063-2019. Appellant was the owner of Mitchell E. Pedro Carpentry. In
July of 2018, Irene Sigler, a 73-year-old woman, responded to an
advertisement in the Sullivan Review newspaper promoting Appellant’s
business. Ms. Sigler owned a vacation cabin in Sullivan County that required
roof repairs. She and her husband informed Appellant that the job needed to
be completed promptly as they expected company in a few weeks. Appellant
wrote a proposal, which subsequently became the parties’ contract, and
specifically promised that the work would be done within two weeks. On July
29, 2018, Ms. Sigler wrote Appellant a check for the quoted figure of
$2,773.50, which Appellant cashed the next day.
As of August 29, 2018, Appellant had not returned to the Siglers’ cabin
and ignored their communications. Ms. Sigler eventually emailed Appellant,
informing him that they no longer wanted his services and requested a refund.
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1Appellant was convicted of one count of home improvement fraud at docket
CP-57-CR-0000026-2019, and two counts of home improvement fraud at
docket CP-57-CR-0000063-2019. We have sua sponte consolidated the
appeals as the issues presented are identical. See Pa.R.A.P. 513.
Additionally, Appellant purports to appeal from the trial court’s orders denying
his post-sentence motions. However, appeal properly lies from the judgment
of sentence made final by the denial of post-sentence motions. See
Commonwealth v. Shamberger, 788 A.2d 408, 410 n.2 (Pa. Super 2001)
(en banc) (citation omitted). We have amended the captions accordingly.
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Appellant did not respond to the email. Instead, he visited the Siglers’ cabin
the next day and dropped off a man named Eddie to do work. When the
Siglers confronted Appellant, he claimed that the repairs had already been
done and that Eddie needed an hour to finish the work. Appellant did not
answer the Siglers’ inquiries regarding when the work had been done. Eddie
tore a hole in the ceiling but stopped work shortly thereafter and drank beer
on their porch.
That evening, Appellant called the Siglers and informed them that he
had purchased drywall that he wished to store at the cabin. The Siglers
reluctantly agreed since Appellant still had their money but instructed
Appellant not to install the drywall until they confirmed that the roof was fixed.
Four days later, following a rainfall, the Siglers visited their cabin and observed
leaks. They contacted Appellant and asked him to visit the property. He did
not show. On September 7, 2018, the Siglers again demanded a refund.
Appellant called at approximately 8 p.m. and offered to meet in person to
discuss the matter, which the Siglers declined due to the late hour. Appellant
abruptly ended the conversation.
The Siglers then sent Appellant a demand letter via certified mail to the
address listed on the contract, which was returned as undeliverable. The
Siglers had no further contact with Appellant and did not receive a refund.
They then hired another contractor to complete the repairs.
The Commonwealth charged Appellant with two counts of home
improvement fraud. At count one, the Commonwealth charged Appellant with
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violating 73 P.S. § 517.8(a)(2), and at count two, it charged a violation of 73
P.S. § 517.8(a)(8). Those crimes read as follows:
(a) Offense defined.--A person commits the offense of home
improvement fraud if, with intent to defraud or injure anyone or
with knowledge that he is facilitating a fraud or injury to be
perpetrated by anyone, the actor:
....
(2) receives any advance payment for performing home
improvement services or providing home improvement
materials and fails to perform or provide such services or
materials when specified in the contract taking into account
any force majeure or unforeseen labor strike that would
extend the time frame or unless extended by agreement
with the owner and fails to return the payment received for
such services or materials which were not provided by that
date;
....
(8) directly or indirectly publishes a false or deceptive
advertisement in violation of State law governing
advertising about home improvement.
73 P.S. § 517.8.
Regarding count two, the Home Improvement Consumer Protection Act
(“HICPA”), 73 P.S. §§ 517.1-517.19, requires contractors performing home
improvement services2 to register with the Bureau of Consumer Protection
(“Bureau”), a division of the Office of Attorney General of Pennsylvania. 73
P.S. § 517.3(a). The Bureau then issues a registration certificate, which
includes a unique registration number. Renewals are required every two
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2 The terms “contractor” and “home improvement” are separately defined.
There is no dispute that Appellant was a contractor performing home
improvement services as defined.
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years. A contractor is required to include the registration number in any
advertisement distributed within the Commonwealth. 73 P.S. § 517.6.
Appellant registered with the Bureau in August of 2011. That registration
expired on August 11, 2013, and he failed to renew it.3 Thus, the
advertisements he placed in the newspaper, which included his registration
number, falsely conveyed that he was validly registered with the Bureau.
The following facts pertain to the charges filed at docket CP-57-CR-
0000026-2019. James Bausher, seventy-one-years old, and his wife, Bonnie,
who was sixty-nine-years old, also owned a vacation home in Sullivan County
that required roofing repairs. The Baushers saw Appellant’s ad in the Sullivan
Times and responded. Appellant visited the property in their absence and
wrote up a proposal.
On June 27, 2018, Mr. Bausher wrote a check for $3,450, the amount
requested by Appellant as a down payment. Appellant did not arrange a
schedule with the Baushers as planned, prompting Mr. Bausher to call
Appellant on July 9, 2018. Mr. Bausher asked Appellant if he had received the
check; Appellant stated he had not. Mr. Bausher told Appellant he would
check with his bank to determine if it had been cashed, but Appellant advised
him not to do so. Mr. Bausher visited his bank and learned that Appellant had
____________________________________________
3 Appellant renewed the registration in February of 2019, but his registration
was deactivated in August of 2019, after an audit revealed Appellant’s
insurance had lapsed. Appellant was given an opportunity to update his
information, but he failed to do so.
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endorsed and cashed the check on June 29, 2018. When confronted,
Appellant claimed he mistook the down payment for another client. Appellant
promised to begin work the week of July 16, but failed to appear onsite. Mr.
Bausher called Appellant during this time period to ask when work would begin
but Appellant would not give a definitive answer.
Finally, on August 14, 2018, Mr. Bausher told Appellant that if he failed
to start work by August 31, he would take steps to get his money back.
Appellant showed up on August 31 and unloaded tarps at the property. He
claimed, however, that he would not be able to start work as he had trouble
finding workers to assist. Eventually, Mr. Bausher sent a demand letter via
certified mail, which was received and signed for by a woman named Marla.
Appellant did not return the money, nor did he ever start the work. The
Commonwealth charged Appellant with four counts, including, at count four,
a violation of 73 P.S. § 517.8(a)(8).
The Commonwealth consolidated the two dockets, and the parties
proceeded to a jury trial on August 23, 2021. At docket CP-57-CR-0000063-
2019, the jury found Appellant guilty of both counts of home improvement
fraud. At CP-57-CR-0000026-2019, the jury convicted Appellant of count four
and acquitted him of the other three counts.
On November 2, 2021, the trial court sentenced Appellant to 9 to 24
months of incarceration at each of the three counts, set consecutively to each
other for the aggregate sentence of 27 to 72 months of incarceration.
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Appellant filed a timely post-sentence motion, which was denied on November
22, 2021.4 Appellant timely appealed5 and filed a Pa.R.A.P. 1925(b)
statement. The trial court filed its responsive Rule 1925(a) opinion, and we
now address the issues presented:
1. Did the Trial Court err in denying the Post Sentence Motion
when HICPA states no Criminal penalty for failing to register as
set forth in 73 P.S. § 517.8, Home Improvement Fraud, being
specified by the Legislature Regarding advertising an alleged
expired registration number when no notice is provided that
criminal penalties attach to the conduct alleged to have been done
by Appellant in violation of due process to convict Appellant, the
Trial Court had no jurisdiction for a criminal matter that could have
____________________________________________
4 The post-sentence motion was docketed on November 15, 2021. See
Pa.R.Crim.P. 720 (post-sentence motion must be filed within ten days after
sentence). Because an untimely post-sentence motion does not toll the
appeal period, this Court issued a rule to show cause why the appeal should
not be quashed as untimely, given that Appellant did not file his notice of
appeal until December 17, 2021. See Commonwealth v. Dreves, 839 A.2d
1122, 1127 (Pa. Super. 2003) (en banc) (“[W]here the defendant does not
file a timely post-sentence motion, there is no basis to permit the filing of an
appeal beyond 30 days after the imposition of sentence.”). Appellant’s
response included a copy of his post-sentence motion, establishing that it was
electronically filed and accepted on Friday, November 12, 2021. Appellant
noted that per Pa.R.Crim.P. 576.1(E)(5), a filing should be docketed on the
day it was electronically submitted. The Court discharged the rule to show
cause and deferred the issue to this panel. We agree that the post-sentence
motion was timely filed, thereby tolling the thirty-day appeal period.
Therefore, this appeal is timely.
5Appellant filed six notices of appeal on December 17, 2021, docketed at 1680
MDA 2021, 1681 MDA 2021, 1682 MDA 2021, 1683 MDA 2021, 1684 MDA
2021, 1685 MDA 2021, 1686 MDA 2021, and 1687 MDA 2021.
The appeals at 1681 through 1684 were quashed by this Court as duplicative
of the 1680 MDA 2021 appellate docket. The 1685 MDA 2021 docket pertains
to CP-57-CR-0000026-2019 and remains active. The 1686 and 1687 dockets
were quashed by this Court as duplicative of 1685 MDA 2021. As previously
stated, we have consolidated the two active dockets.
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been resolved by civil remedies and the verdict is so contrary to
the evidence it shocks one’s sense of justice.
2. Did the Trial Court err in denying the Motion to Dismiss at
Trial of August 23, 2021 even though HICPA states no Criminal
penalty for failing to register as set forth in 73 P.S. § 517.8, Home
Improvement Fraud, being specified by the Legislature Regarding
advertising an alleged expired registration number when no notice
is provided that criminal penalties attach to the conduct alleged to
have been done by Appellant in violation of due process to convict
Appellant.
3. Did the Trial Court err in denying the Motion for Leave to
File Petition for Habeas Corpus of March 23, 2021 by the Order of
April 20, 2021 even though Appellant was represented by his third
attorney and provided cause for the delay in the filing pursuant to
PA.R.Crim. P. 579 which amounted to a break down in the legal
process and the interests of the justice required the meritorious
Petition for Habeas Corpus be heard by the Trial Court.
4. Did the Trial Court err in denying the Appellant’s request for
bail pending appeal at the time of Sentencing by failing to state
on the record the reasons for his decision of denial of bail at the
time of sentencing or after written request in the Post Sentence
Motion pursuant to Pa.R.Crim.P. 521(C).
5. Did the Trial Court err and abuse its discretion by denying
the Appellant's objection to Commonwealth Exhibit 11 and
denying the Appellant's requested jury instruction defining the
term fraud which effected the outcome of the Trial.
6. Did the Trial Court err and abuse its discretion by sentencing
the Appellant to an F2 when the charge was listed as an F3 in the
Criminal Information, failing to award appropriate time credit and
sentencing Appellant to an unduly harsh sentence consecutive to
his other case when he had a prior record score of “0”.
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Appellant’s Brief at 1680 MDA 2021 at 5-7 (verbatim) reordered for ease of
disposition).6
Appellant’s first issue involves the sufficiency of the evidence. Our
standard of review is well-settled. “The law is settled in this Commonwealth
that in reviewing the sufficiency of the evidence, the appellate court is required
to review all the evidence and all reasonable inferences drawn therefrom in
the light most favorable to the Commonwealth[.]” Commonwealth v.
McCollum, 926 A.2d 527, 530 (Pa. Super. 2007) (quoting
Commonwealth v. Earnest, 563 A.2d 158, 159 (Pa. Super. 1989)).
The Commonwealth maintains that Appellant has waived this issue as
he failed to challenge any element in the concise statement of errors
complained of on appeal. This Court has repeatedly held that, to preserve a
claim attacking the sufficiency of evidence on appeal, the Rule 1925(b)
statement “needs to specify the element or elements upon which the evidence
was insufficient.” Commonwealth v. Arnold, 284 A.3d 1262, 1279 (Pa.
Super. 2022) (quoting Commonwealth v. Tyack, 128 A.3d 254, 260 (Pa.
Super. 2015)). Similarly, a statement that “is too vague can result in waiver
of issues on appeal.” Id. (citation omitted). Appellant’s concise statement
identified his first issue as follows:
Whether the Trial Court erred by Denying the Post Sentence
Motion of November 12, 2021 including the Motion for Judgment
____________________________________________
6 We reiterate that the issues raised in the 1685 MDA 2021 appeal are
substantively identical.
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of Acquittal based upon the insufficiency facts in the law, Motion
for Arrest of Judgment based upon HICPA not criminalizing the
conduct alleged to have been done by the Defendant in the
charging documents and at trial therefore the Court did not have
jurisdiction for a criminal prosecution of this matter which could
have been resolved by civil remedies, Motion for New Trial based
upon jury's verdict is so contrary to the evidence that it shocks
one’s sense of justice and that a new trial is imperative so that
Mr. Pedro may given another opportunity to prevail, Motion to
Modify Sentence based upon improper and/or unduly harsh
sentence including failing to include proper time credit, running
all sentences consecutively instead of concurrently, sentencing
the Defendant outside the eligibility of Boot Camp when he had a
prior record score of “0” and would be otherwise eligible for Boot
Camp and denying Mr. Pedro bail pending Appeal pursuant to Pa.
R. Crim. P. 521(B).
Concise Statement, 1/28/22, at unnumbered 3 (verbatim).
The Commonwealth characterizes this as a “lengthy and, frankly,
confusing statement” that failed to “put the trial court on notice of the specific
sufficiency argument Appellant makes on appeal.” Commonwealth’s Brief at
16. We agree that Appellant failed to preserve his present argument.
Appellant’s confusing concise statement has little relation to Appellant’s
current argument, which focuses on a phrase within Section 517.8(a)(8). That
crime reads:
(a) Offense defined.--A person commits the offense of home
improvement fraud if, with intent to defraud or injure
anyone or with knowledge that he is facilitating a fraud or
injury to be perpetrated by anyone, the actor:
(8) directly or indirectly publishes a false or deceptive
advertisement in violation of State law governing
advertising about home improvement.
73 P.S. § 517.8 (emphasis added).
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While his argument is undeveloped, it appears that the gravamen of
Appellant’s argument is that Section 517.9 supplies the exclusive ‘State law
governing advertising about home improvement’ for purposes of establishing
a violation of Section 517.8(a)(8). Section 517.9, entitled “Prohibited acts,”
states in pertinent part:
No person shall:
....
(8) Advertise or offer, by any means, to perform a home
improvement if the person does not intend to do any of the
following:
(i) Accept a home improvement contract.
(ii) Perform the home improvement.
(iii) Charge for the home improvement at the price
advertised or offered.
73 P.S. § 517.9.
We agree with the Commonwealth that the prolix concise statement
failed to alert the trial court of that specific argument. We therefore find that
Appellant has waived his claim.
We additionally determine that, even if the statement preserved his
sufficiency challenge, the claim is waived for deficient presentation. “[W]hen
defects in a brief impede our ability to conduct meaningful appellate review,
we may dismiss the appeal entirely or find certain issues to be waived.”
Commonwealth v. Kane, 10 A.3d 327, 331 (Pa. Super. 2010) (quoting
Commonwealth v. Hardy, 918 A.2d 766, 771 (Pa. Super. 2007)). To begin,
Appellant’s statement is internally inconsistent as its requested relief is for a
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new trial. However, a successful sufficiency challenge results in discharge.
See Commonwealth v. Yanoff, 690 A.2d 260, 263 (Pa. Super. 1997).
Additionally, Appellant does not separately contest his conviction for violating
73 P.S. § 517.8(a)(2). His requested remedy is a new trial on the grounds
the verdict “is shock to justice [sic] the Appellant would be found guilty of the
HICPA [v]iolations.” Appellant’s Brief at 20. The plural suggests that
Appellant seeks a new trial on all counts, not just the Section (a)(8) violations.
This conclusion is bolstered by the fact that Appellant references his motion
for a writ of habeas corpus, which requested dismissal of all charges, in part
because “the basis for the fraud is the use of the allegedly expired contractor
registration number,” and “it is a violation of due process to pursue criminal
charges.” See Brief in Support of Motion for Habeas Corpus, 3/22/21, at
unnumbered 3.
Even if we were to limit our focus to the Section (a)(8) convictions,
Appellant’s argument offers no focused examination of the statutory language
‘State law governing advertising about improvement.’ Ascertaining legislative
intent presents a pure question of law. See Commonwealth v. Gamby, 283
A.3d 298 (Pa. 2022) (determining that the neck qualified as “sexual or other
intimate parts” for indecent assault and the evidence was therefore sufficient
to convict). The phrase ‘governed by State law’ is undefined, thus we would
need to determine the plain meaning of that language. Id. at 304. In lieu of
an argument focused on what the General Assembly intended by employing
the phrase ‘governed by State law,’ Appellant seems to argue that Section
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517.9(a)(8) establishes the sole basis by which the Commonwealth can
sanction an individual for what may generically be referred to as ‘false
advertising.’ But, of course, the Commonwealth did not allege that Appellant’s
false advertising satisfied any of the Section 517.9(a)(8)(i)-(iii) conditions,
none of which involve fraud. Instead, it charged Appellant with intending to
defraud the victims pursuant to Sections 517.8(a)(2) and (8).
We add that Appellant’s reply brief argues that we must read the
language in the light most favorable to him, which is the rule of lenity.
Appellant’s Reply Brief at 3 (arguing that the Commonwealth “may not argue
[l]egislative [i]intent contrary to the plain meaning of the language” and that
the language “must be interpreted in the light most favorable to the
[a]ppellant”). However, that rule only applies when a penal statute is
ambiguous. “Under the rule of lenity, when a penal statute is ambiguous, it
must be strictly construed in favor of the defendant.” Commonwealth v.
Cousins, 212 A.3d 34, 39 (Pa. 2019) (citation omitted). Appellant does not
claim that the statutory language is ambiguous.
In sum, Appellant’s argument is confusing and impedes appellate
review. He offers no analysis of the key statutory phrase ‘governing
advertising about home improvement.’ Nor is it even clear that Appellant is
solely attacking his convictions for those counts, as portions of his argument
seem to suggest that the Commonwealth could not prosecute Appellant for
any criminal act. In addition to the quoted habeas corpus request for relief,
Appellant makes the entirely unexplained assertion that the trial court “had
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no jurisdiction for a criminal matter that could have been resolved by civil
remedies[.]” Appellant’s Brief at 5. All of these defects impede our ability to
address Appellant’s claim. “This Court will not act as counsel and will not
develop arguments on behalf of an appellant.” Commonwealth v. Hardy,
918 A.2d 766, 771 (Pa. Super. 2007). Appellant’s failure to develop a
coherent argument mandates waiver of this issue.
Appellant’s reordered second issue is a repackaging of the foregoing
argument. After the Commonwealth rested its case, Appellant requested that
the court grant a judgment of acquittal. As with the first claim, we will not
develop Appellant’s argument, and we deem it waived for the same reasons.
Appellant’s reordered third point of error involves Appellant’s request
for leave to file a petition for a writ of habeas corpus seeking dismissal of the
charges. The trial court declined to consider the motion based on Rule 579,
which specifies that pre-trial motions for relief shall be filed “within 30 days
after arraignment, unless opportunity therefor did not exist, or the defendant
or defense attorney, or the attorney for the Commonwealth, was not aware of
the grounds for the motion, or unless the time for filing has been extended by
the court for cause shown.” Pa.R.Crim.P. 579(A). Appellant filed the motion
for leave on March 22, 2021. The trial court’s opinion noted that Appellant
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was charged at several dockets7 and that the last arraignment occurred on
October 25, 2019.
Appellant submits that the trial court abused its discretion in failing to
find cause to excuse the late filing. His primary argument is that his prior
attorneys failed to file the motion in a timely manner for various reasons,
including defending a homicide trial, moving offices, and having COVID. See
Appellant’s Brief at 21-22.
We agree with the Commonwealth that this issue is moot. See
Commonwealth’s Brief at 22-23. If the Commonwealth proves the offense
beyond a reasonable doubt, “any defects at a preliminary hearing regarding
the sufficiency of the evidence are considered harmless.” Commonwealth
v. Wilson, 172 A.3d 605, 610 (Pa. Super. 2017) (quotation marks and citation
omitted). The “conviction at trial precludes this Court from reviewing his
pretrial habeas issues.” Id. Moreover, Appellant simply states that the trial
court abused its discretion in accepting the untimely filing but does not discuss
what remedy would attach. At best, we would decide the issue as if timely
filed, but that simply returns us to the conclusion that the subsequent guilty
verdicts obviated the need to address those claims.
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7 Appellant was charged at five total dockets. In addition to the two dockets
at issue in this consolidated appeal, two of the dockets were dismissed at trial.
The trial court granted dismissal of the fifth pursuant to Pa.R.Crim.P. 586,
which permits parties in cases not involving violence to reach an agreement.
Presumably, Appellant returned whatever sum was involved.
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Appellant’s reordered fourth issue challenges the trial court’s order
denying bail pending appeal, as raised in his post-sentence motion. The
Commonwealth argues that, per Rule of Appellate Procedure 1762, an appeal
of a trial court’s decision pertaining to bail following sentencing cannot be
raised on direct appeal from the judgment of sentence. That Rule states:
(a) Bail when an appeal is pending--Applications relating to
bail when an appeal is pending shall ordinarily first be presented
to the trial court and shall be governed by the Pennsylvania Rules
of Criminal Procedure. If the trial court denies relief, a party may
seek relief in the appellate court by filing an application, pursuant
to Pa.R.A.P. 123, ancillary to the pending appeal.
(b) Bail when no appeal is pending.--Applications relating to
bail when no appeal is pending:
(1) Applications relating to bail when no appeal is pending
shall first be presented to the trial court and shall be
governed by the Pennsylvania Rules of Criminal Procedure.
(2) An order relating to bail shall be subject to review
pursuant to Chapter 16.
Pa.R.A.P. 1762.
Appellant sought bail after sentencing, which was denied, and then
included another application for bail in a post-sentence motion as opposed to
filing a separate application for bail pending the outcome of the motion. See
Comment, Pa.R.Crim.P. 720 (“For bail proceedings pending the outcome of
the post-sentence motion, see Rules 521 and 523.”). Because the bail
application preceded the pendency of his appeal, Rule 1762(b)(1) applies.
Appellant did not follow the procedures for seeking appellate review of that
order pursuant to Chapter 16 of the Rules of Appellate Procedure, which
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creates a specialized petition for review process for denials of bail. See
Commonwealth v. Carter, 247 A.3d 27 (Pa. Super. 2021). We therefore
cannot review the claim.
The reordered fifth issue involves two distinct issues. First, Appellant
argues that the trial court erroneously admitted Commonwealth’s Exhibit 11,
which was a sample of a registration certificate that the Bureau issues to home
contractors. The Commonwealth admitted a sample because it does not retain
copies of the originals.
Q. Does your office retain a copy of that certification that was
issued, for example, to Mitchell Pedro in 2011?
A. We do not retain certificates, no.
Q. OK, so is what you have in front of you, is that just a sample
of what would have been sent?
A. Correct.
N.T., 8/23/21, at 53.
Second, Appellant argues that the trial court erred in declining to give
his suggested jury instruction defining “fraud.” We reproduce the entirety of
Appellant’s argument in support of this issue:
At the Trial, the Trial Court improperly admitted Commonwealth’s
Exhibit 11, a sample form with the name of a person from
Philadelphia from the Consumer Protection Bureau, into the
evidence which was objected to by Mr. Pedro as it did not have
Mr. Pedro’s name or address on the document. (Hearing 8-23-21
N.T. 52-55). The Trial Court failed to provide a definition of fraud
in the Jury instructions even though the Jury deliberated for
numerous hours, asked numerous questions regarding the jury
instructions including the importance of the age of victims,
requesting all the exhibits, written copies of the definitions of each
charge presented verbally by the Court to the Jury. (Hearing 8-
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23-21 N.T. 219-232).
The admissibility of evidence is at the discretion of the trial court
and only a showing of an abuse of that discretion, and resulting
prejudice, constitutes reversible error.” Commonwealth v. Glass,
2012 PA Super 137, 50 A.3d 720, 724-25 (Pa. Super. 2012). In
reviewing a trial court’s refusal to provide a jury instruction, the
appellate court reviews whether the jury instruction is warranted
by the evidence presented in the case and changed outcome of
case. Commonwealth v. Baker, 963 A.2d 495 (Pa. Super. 2008).
The Trial Court’s decision to admit Exhibit 11 and failure to provide
a definition of the term “Fraud” directly effected and changed the
outcome of the case and prejudiced the Appellant.
Appellant’s Brief at 26-27 (verbatim).
For evidentiary errors, the standard of review is an abuse of discretion.
“As our Supreme Court has explained, ‘[t]he admissibility of evidence is a
matter solely within the discretion of the trial court. This Court will reverse
an evidentiary ruling only where a clear abuse of discretion occurs.’”
Commonwealth v. Woeber, 174 A.3d 1096, 1100 (Pa. Super. 2017)
(quoting Commonwealth v. Johnson, 638 A.2d 940, 942 (Pa. 1994)).
Appellant offers no argument as to why admitting the evidence was an abuse
of discretion, and we cannot discern one. Appellant correctly notes that the
form “did not have [Appellant]’s name or address on the document.”
Appellant’s Brief at 26. But the Commonwealth clearly admitted the document
for its demonstrative value, showing the jury what Appellant’s form would
have generically looked like. Additionally, even if we accept that the trial court
somehow erred in admitting the exhibit, Appellant offers no argument as to
how an innocuous document like this one could have possibly prejudiced him.
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Turning to the jury instruction issue, we agree with the Commonwealth
that Appellant did not preserve his objection. “[U]nder Criminal Procedural
Rules 603 and 647(B), the mere submission and subsequent denial of
proposed points for charge that are inconsistent with or omitted from the
instructions actually given will not suffice to preserve an issue, absent a
specific objection or exception to the charge or the trial court’s ruling
respecting the points.” Commonwealth v. Pressley, 887 A.2d 220, 225 (Pa.
2005). In Commonwealth v. Green, 273 A.3d 1080, 1084 (Pa. Super.
2022), this Court held that Pressley’s interpretation of those Rules did not
require waiver when counsel argued, on two separate days, for self-defense
and voluntary manslaughter charges. The appellant preserved his objections
on the record during the charging conferences and the trial court assured
counsel that the issues were preserved for appeal. We acknowledged that an
objection at the end of the charge would have eliminated any need to discuss
waiver, but “we do not find that preserving his objections on the record during
the charging conferences, rather than at the end of the jury charge, where
the trial court expressly informs counsel his objections were preserved, runs
afoul of Pressley or Rule 647(B).” Id. at 1084. Green stated that the
Pressley holding applied when “there is no indication that counsel did
anything more than merely submit proposed points that the trial court
denied.” Id. at 1083.
A mere submission of proposed points describes what happened here.
The relevant exchange reads as follows:
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[Appellant]: Regarding fraud, with the intent to fraud [sic] or
injure anyone with knowledge that you’re facilitating a fraud or
injury to be perpetrated by anyone, I would ask that the Court
define fraud as knowingly or recklessly deceptive and I took that
definition from … Commonwealth v. Hill, 140 A.3d 713 [(Pa.
Super. 2016)].
[Trial Court]: Attorney Anderson?
[Commonwealth]: Judge, I don’t feel there’s a need to define the
word fraud. I feel that’s a commonly known and used word in
general society and would not require further explanation or
definition by the [c]ourt.
***
[Trial Court]: [W]ith respect to fraud, I’ll agree with the
Commonwealth. That is a more common phrase and … an average
member of the public would be aware of the same.
N.T., 8/23/21, at 161-62.
Following the instructions regarding the elements of each crime, the trial
court asked Appellant, “has this [c]ourt failed to instruct the jury with respect
to the elements of the offenses?” Appellant replied, “No, Your Honor.” Id. at
205. Appellant thus failed to preserve his challenge to the jury instructions.
Appellant’s final issue raises several challenges to his sentence,
involving both its legality and the discretionary aspects. We find these
arguments to be meritless. However, we find an error regarding the RRRI
sentence and remand to the trial court for entry of a corrected sentencing
order.
Beginning with the legality, Appellant argues that the sentence imposed
at docket CP-57-CR-0000026-2019 is illegal because the criminal information
specified that the crime was graded as a felony of the third degree. The trial
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court accepted the Commonwealth’s argument that the enhanced felony of
the second degree grading applied.
The criminal information for docket CP-57-CR-0000026-2019 was
prepared by the Sullivan County District Attorney’s Office, which was
prosecuting the case before the Attorney General took over.8 The information
charging Appellant with a violation of 73 P.S. § 517.8(a)(8) listed the grading
as a felony of the third degree.
That grading applies when the amount involved exceeds $2,000. 73
P.S. § 517.8(c)(1)(i) (“A violation of subsection (a) … (8) constitutes … a
felony of the third degree if the amount involved exceeds $2,000.”). The
offense is graded as a felony of the second degree if the victim was sixty years
or older. 73 P.S. § 517.8(c)(4) (“Where a person commits an offense under
subsection (a) and the victim is 60 years of age or older, the grading of the
offense shall be one grade higher than specified in paragraphs (1), (2) and
(3).”).
We find that this notice was constitutionally defective. In
Commonwealth v. King, 234 A.3d 549 (Pa. 2020), our Supreme Court
considered the legality of an “enhanced sentence for attempted murder
resulting in serious bodily injury … when the Commonwealth failed to provide
formal notice of its intent to seek the enhancement in the charging
documents.” Id. at 552. The sentence for attempted murder normally carries
____________________________________________
8The criminal information in the other case was filed by the Attorney General
and correctly lists the grading as a felony of the second degree.
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a maximum penalty of twenty years unless serious bodily injury occurs, in
which case the maximum is forty years. The charging documents listed the
crime of attempted murder but made no reference to the statutory section
authorizing the increased penalty. The King Court held that this defect
violated due process.
[T]he Commonwealth in effect prosecuted King for the aggravated
crime of attempted murder causing serious bodily injury despite
charging him with the crime of attempted murder. The statutory
definition of attempted murder does not require proof of serious
bodily injury. See 18 Pa.C.S. §[§] 901, 2502. Section 1102(c)
provides that a person convicted of attempted murder that does
not result in serious bodily injury may be sentenced to a maximum
term of twenty years of imprisonment, whereas a person
convicted of attempted murder that results in serious bodily injury
faces a maximum term of forty years of imprisonment. 18 Pa.C.S.
§ 1102(c). Serious bodily injury caused by the attempted murder
is undoubtedly an essential element of the offense that must be
included in the charging documents.
It therefore follows that the charging instrument must include
those elements to put the defendant on notice of the crime.
****
Here, the criminal information plainly put King on notice of the
crime of attempted murder. But ... King was convicted of the
aggravated crime of attempted murder causing serious bodily
injury. Nothing in the indictment or criminal information itself
alerted King to the Commonwealth’s intention to prosecute him of
that crime. We therefore hold that when the Commonwealth
intends to seek an enhanced sentence for attempted murder
resulting in serious bodily injury under Section 1102(c), the
Commonwealth must include a citation to the statutory provision
as well as its language in the charging documents. While the
information arguably gave some notice of the Commonwealth’s
intent to seek the sentencing enhancement based on the facts
alleged in the charging documents and the Commonwealth’s
mention of the sentencing guidelines prior to trial, this degree of
notice was insufficient.
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Id. at 562-63.
Similarly, the criminal information here put Appellant on notice that it
intended to prosecute him of the crime of home improvement fraud by false
or deceptive advertising, causing a loss in excess of $2,000. Nothing in the
information signaled that the Commonwealth intended to prove the crime
Appellant was actually sentenced for, which may be described as home
improvement fraud by false or deceptive advertising against a person over the
age of sixty. This was, for constitutional purposes, an aggravated crime. The
Commonwealth’s criminal information therefore violated due process by failing
to include a reference to the 73 P.S. § 517.8(c)(4) provision authorizing the
enhanced penalty.
However, King held that the due process violation does not
automatically result in an illegal sentence, as the error is subject to harmless
error review. “[W]e conclude that King was adequately apprised through
other means of the Commonwealth’s intentions and that the charging error
was harmless beyond a reasonable doubt.” Id. at 563.
We conclude that the error here was harmless beyond a reasonable
doubt. See Commonwealth v. Hamlett, 234 A.3d 486 (Pa. 2020) (holding
that appellate courts may sua sponte invoke harmless error even where
Commonwealth fails to raise it). The Commonwealth submitted special
interrogatories to the jury asking it to determine the age of the victim, which
is, of course, an objective fact and was not contested. Additionally, the fact
that Appellant was jointly prosecuted for the exact same crime against another
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victim over the age of 60 is also evidence that Appellant was not taken by
surprise. And perhaps most significantly, it appears that Appellant was fully
aware of the Commonwealth’s intentions. Appellant’s brief in support of his
petition for a writ of habeas corpus argued, “Query how an advertisement in
the newspaper as alleged is specifically targeted to individuals 60 or older.”
Brief in Support of Motion for Habeas Corpus, 3/22/21, at unnumbered 3. The
next paragraph states, “The Commonwealth is required to set forth the basis
for the grading in the Information.” Id.The Commonwealth’s response argued, “The Commonwealth will
establish at trial that the victims in all four captioned cases are older than 60.
The applicable grading for the charged offenses is thus enhanced to Felony 2.”
Commonwealth’s Brief in Opposition, 4/23/21, at 10. That response, plainly
stating the Commonwealth’s intention to prove the aggravated crime as we
have described it, meets if not exceeds the de facto notice that the King Court
found.
While King did not receive formal notice of the Commonwealth’s
intent to seek the enhancement, King received de facto notice, at
various points before trial, that the Commonwealth was seeking
the enhancement. For example, the factual summaries in the
charging documents made clear that Banks suffered serious bodily
injury. Moreover, the Commonwealth advised King that the
minimum penalty for attempted murder if convicted was
seventeen and one-half years, signaling that the Commonwealth
intended to seek the enhancement. Finally, the Commonwealth
and King’s attorney reviewed and agreed to the content and form
of the verdict sheet prior to jury deliberations, which included a
special interrogatory regarding whether Banks suffered serious
bodily injury as a result of the attempted murder.
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King, 234 A.3d at 566 (footnote omitted).
Finally, as in King, we note that it does not appear that the
Commonwealth’s failure to provide formal notice in the information had any
effect on Appellant’s defense. Id. We therefore conclude that any error was
harmless beyond a reasonable doubt.
In his next challenge to the sentence’s legality, Appellant argues that he
was entitled to seventy-four days of time credit as a matter of law. At
sentencing, Appellant stated that he had served “a total of 74 days after his
arrest and prior to sentencing” the Columbia County Correctional Facility. N.T.
Sentencing, 11/2/21, at 7. He asked the court to credit him for those days
because “all the charges … [are] all related to each other[.]” Id. The
Commonwealth responded that Appellant was entitled to ten days of time
credit, but the remaining 64 days “ha[ve] no relationship to this case[.]” Id.
at 10. Appellant makes no specific argument regarding the time credit and
does not address the representations that the 64 days involved a case that
has nothing to do with the home improvement fraud dockets. As with other
issues raised in this appeal, this Court will not develop Appellant’s argument.
We therefore deem this aspect of Appellant’s claim waived.
Turning to the discretionary aspects of Appellant’s sentence, we
conclude that Appellant has failed to present a substantial question warranting
our review. These appeals are not as of right.
Before [this Court may] reach the merits of [a challenge to the
discretionary aspects of a sentence], we must engage in a four
part analysis to determine: (1) whether the appeal [was timely-
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filed]; (2) whether Appellant preserved his issue; (3) whether
Appellant’s brief includes a concise statement of the reasons relied
upon for allowance of appeal with respect to the discretionary
aspects of sentence; and (4) whether the concise statement raises
a substantial question that the sentence is appropriate under the
sentencing code…. [I]f the appeal satisfies each of these four
requirements, we will then proceed to decide the substantive
merits of the case.
Commonwealth v. White, 193 A.3d 977, 982 (Pa. Super. 2018) (quoting
Commonwealth v. Disalvo, 70 A.3d 900, 902 (Pa. Super. 2013)).
Appellant has met the first three requirements, but we agree with the
Commonwealth that he has failed to satisfy the fourth requirement. The Rule
2119(f) statement reads:
The sentence imposed was within the sentencing guidelines. The
sentences imposed were not run concurrently at the time of
sentence despite … [Appellant’s] having [a] prior record score of
0 and no history of violence. The [t]rial [c]ourt refused to allow
… [Appellant] credit for seventy-four (74) days confinement
contrary to 42 Pa.C.S.[] § 9760.
Appellant’s Brief at 15.
We first note the guideline ranges for these crimes. The sentencing
guidelines codified at 203 Pa. Code. § 303.15 designate offense gravity scores.
The home improvement fraud crimes are not specifically listed, and thus, the
default assignment of an offense gravity score of seven for a felony of the
second degree applies. When paired with Appellant’s prior record score of
zero, the basic sentencing matrix calls for a sentence of 6 to 14 months in the
standard range. Thus, the sentence of 9 to 24 months at the three counts,
set consecutively to each other, falls within the middle of the standard range.
The decision to impose consecutive sentences at all three counts does not
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present a substantial question in the absence of some other allegation. As
this Court stated in Commonwealth v Dodge, 77 A.3d 1263, 1270 (Pa.
Super. 2013):
To make it clear, a defendant may raise a substantial question
where he receives consecutive sentences within the guideline
ranges if the case involves circumstances where the application of
the guidelines would be clearly unreasonable, resulting in an
excessive sentence; however, a bald claim of excessiveness due
to the consecutive nature of a sentence will not raise a substantial
question.
Id. at 1270 (emphasis added). Appellant’s bald claim of excessiveness does
not raise a substantial question and we therefore find that he has failed to
invoke the jurisdiction of this Court to review the discretionary aspects of his
sentence.
Even if Appellant presented a proper substantial question warranting our
review, we would find no abuse of discretion. The trial court had the benefit
of a pre-sentence investigation report, and its opinion briefly discusses its
rationale for imposing the sentence, writing that consecutive standard range
sentences were appropriate because
[Appellant] never accepted or took responsibility for his actions.
[Appellant] engaged in criminal conduct that took advantage of
society’s most vulnerable individuals, those over sixty (60) years
of age. [Appellant] never apologized to his victims. Lastly,
[Appellant] did not comply with his bail conditions. [Appellant]
admitted to his probation officer that one (1) week prior to his
interview for his Pre-Sentence Investigation, he used marijuana,
which was a direct violation of his bail.
Trial Court Opinion, 2/28/22, at 3-4.
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The trial court articulated a reasoned basis for its sentence, and the
sentencing transcript reveals that Appellant, consistent with arguments made
in his appellate briefs, repeatedly expressed his view that these matters
should have been resolved in civil court. We discern no abuse of discretion in
the trial court’s determination that consecutive sentences were warranted in
light of Appellant’s lack of remorse and multiple victims.
Finally, we address Appellant’s RRRI sentence. The trial court
determined that Appellant was eligible for that program. As set forth in the
Sentencing Code, the trial court shall determine eligibility at the time of
sentencing.
(b.1) Recidivism risk reduction incentive minimum
sentence.--The court shall determine if the defendant is eligible
for a recidivism risk reduction incentive minimum sentence under
61 Pa.C.S. Ch. 45 (relating to recidivism risk reduction incentive).
If the defendant is eligible, the court shall impose a
recidivism risk reduction incentive minimum sentence in
addition to a minimum sentence and maximum sentence
except, if the defendant was previously sentenced to two or more
recidivism risk reduction incentive minimum sentences, the court
shall have the discretion to impose a sentence with no recidivism
risk reduction incentive minimum.
42 Pa.C.S. § 9756(b.1) (emphasis added).
As the emphasized language illustrates, the trial court must sentence
an RRRI-eligible offender to the ‘normal’ minimum and maximum sentence,
and, separately, to a sentence including the applicable reduction. The
reductions are set forth in 61 Pa.C.S. § 4505.
(c) Recidivism risk reduction incentive minimum
sentence.--If the court determines that the defendant is an
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eligible offender or the prosecuting attorney has waived the
eligibility requirements under subsection (b), the court shall
provide notice of eligibility to the defendant and enter a
sentencing order that does all of the following:
(1) Imposes the minimum and maximum sentences as
required under 42 Pa.C.S. § 9752 (relating to sentencing
proceeding generally).
(2) Imposes the recidivism risk reduction incentive
minimum sentence. The court shall direct the department
to calculate the length of the sentence. The recidivism risk
reduction incentive minimum shall be equal to three-fourths
of the minimum sentence imposed when the minimum
sentence is three years or less. The recidivism risk
reduction incentive minimum shall be equal to five-sixths of
the minimum sentence if the minimum sentence is greater
than three years. For purposes of these calculations, partial
days shall be rounded to the nearest whole day. In
determining the recidivism risk reduction incentive
minimum sentence, the aggregation provisions of 42
Pa.C.S. §§ 9757 (relating to consecutive sentences of total
confinement for multiple offenses) and 9762(f) (relating to
sentencing proceeding; place of confinement) shall apply
and the recidivism risk reduction incentive minimum
sentence shall be recalculated following the aggregation of
consecutive sentences. An offender determined by the
court to be ineligible for a recidivism risk reduction incentive
minimum sentence for any of the sentences subject to
aggregation shall be ineligible for a recidivism risk reduction
incentive minimum sentence for the aggregated sentence.
61 Pa.C.S. § 4505(c) (emphasis added).
The sentencing orders reflect that the trial court determined that
Appellant was RRRI eligible and imposed the minimum and maximum. The
sentencing orders do not, however, include any reference to the RRRI
reduction. The aggregate sentence of 27 to 72 months is less than three years
and therefore a three-fourths reduction applied. See also 61 Pa.C.S. § 4506
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(establishing that an offender is eligible for parole at the expiration of the RRRI
minimum sentence).
Finally, we conclude that this error does not require vacating the
judgment of sentence. While we have not found any case directly on point, in
Commonwealth v. Morales-Feliciano, No. 1445 MDA 2019, unpublished
memorandum (Pa. Super. filed May 4, 2021), this Court determined that the
trial court incorrectly calculated the applicable RRRI reduction by examining
each individual sentence instead of the aggregate sentence. We concluded
that the error was amenable to correction as a patent and obvious error. Id.
at *5-6. The error here does not involve a miscalculation of the applicable
reduction, but the core logic of the error being “based on a non—discretionary
statutory calculation” likewise applies here. The trial court was required to
impose a particular sentence based on a formula. We deem Morales-
Feliciano persuasive and decline to vacate the judgment of sentence.
Judgments of sentence affirmed. Remanded for entry of amended
sentencing order consistent with this memorandum. Jurisdiction relinquished.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 3/07/2023
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