Commonwealth v. Succi

J-A28020-16
2017 PA Super 321COMMONWEALTH OF PENNSYLVANIA, IN THE SUPERIOR COURT OF
PENNSYLVANIA
Appellee
v.
JOHN JAMES SUCCI,
Appellant No. 480 EDA 2015
Appeal from the Judgment of Sentence January 16, 2015
In the Court of Common Pleas of Bucks County
Criminal Division at No(s): CP-09-CR-0002732-2014
BEFORE: PANELLA, SHOGAN, and PLATT,* JJ.
OPINION BY SHOGAN, J.: FILED OCTOBER 12, 2017
John Succi, (“Appellant”) appeals from the judgment of sentence
entered January 16, 2015, following his conviction by a jury on
December 12, 2014, of two counts of home improvement fraud, twelve
counts of deceptive or fraudulent business practices, twelve counts of theft
by deception and one count of insurance fraud.1 We affirm.
The trial court set forth the following factual history:
The testimony elicited over the lengthy trial established
that [Appellant] owned and operated a construction company
located in Yardley, Bucks County. Deborah Parker resided in a
single family home located in Doylestown, Bucks County. In
June of 2005, Mrs. Parker entered into a home improvement
contract with [Appellant]. Pursuant to that contract and an
addendum to the contract, [Appellant] agreed to make a number
* Retired Senior Judge assigned to the Superior Court.
1 73 P.S. § 517.8(a)(2), 18 Pa.C.S. § 4107(a)(2), 18 Pa.C.S. § 3922(a)(1),
and 18 Pa.C.S. § 4117(b)(4), respectively.
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of internal and external improvements to Mrs. Parker’s home.
The project was to be completed in four weeks. Three months
after construction began, the project had still not been
completed. Due to [Appellant’s] poor work, his routine absences
from the project and his repeated demands for money in
advance, Mrs. Parker contacted other contractors who, after
inspecting the property, advised her that the work [Appellant]
had done was so inferior, it would have to be completely redone.
[Appellant] ultimately abandoned the project leaving asbestos
and other debris littered around the property. When he stopped
work, major portions of the work were incomplete and the work
that had been completed was substandard. After abandoning
the project, [Appellant] placed a mechanic’s lien on Mrs. Parker’s
property. At the time of trial in December of 2014, much of the
original project had still not been completed and the remaining
defective work had still not been repaired.
In August of 2005, about the same time [Appellant]
abandoned Mrs. Parker’s project, [Appellant] contracted with
Richard Schulang to perform construction work on
Mr. Schulang’s home in Jamison, Bucks County. Under the
terms of the contract, [Appellant] agreed to finish the basement
of the home which was to include framing, insulation, electric,
installation of a drop ceiling, construction of a cover for a radon
pipe with an access panel and construction of a mechanical
closet for $28,500. He also agreed to enlarge an existing deck
on the home and replace the old decking with composite wood
for $6,500. This project was supposed to be completed within
three weeks.
By February of 2006, after numerous delays in
construction, [Appellant] stopped work. At the time he
abandoned the project, much of the work had not been
completed although he had received all but $1,250 of the
contract price. In addition, much of the work that had been
completed was substandard. The deck [Appellant] built could
not pass inspection and was torn down. The composite wood
decking used was improperly installed, voiding its warranty. In
the basement, the electrical work did not pass inspection. Many
of the outlet holes were too large and needed to be fixed. In
addition, various materials Mr. Schulang had paid for were not
delivered, including ground fault interrupters, door handles, deck
railings and tile. A permit Mr. Schulang had paid for was never
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obtained. In May of 2006, [Appellant] placed a mechanic’s lien
on Mr. Schulang’s property.
In August of 2006, a few months after [Appellant] stopped
working on the Schulang project, [Appellant] contracted with
Brian Hahn to add a basement to Mr. Hahn’s home in Lower
Makefield Township, Bucks County. Construction of the
basement entailed removal of the back deck, lifting the
structure, excavating the basement, laying a new foundation and
lowering the structure onto the new foundation. [Appellant]
agreed to perform the work for $45,000.
Although Mr. Hahn had paid [Appellant] a total of $52,600,
an amount in excess of the original contract, [Appellant’s] work
was seriously deficient. [Appellant] initially failed to obtain the
necessary permits and work was sporadic. The work site was
scattered with debris. The foundation was inadequate and in
danger of collapse. Because the house was not set on the
foundation properly, the windows in the home would not open,
tiles popped, walls cracked, kitchen cabinets pulled away from
the walls and the floor sloped.
During a discussion of [Appellant’s] demand for more
money and his failure to obtain the necessary inspections,
Mr. Hahn asked if he needed to “protect” himself. [Appellant]
responded, “If you go legal on me, I’ll bury you. I’ll bury you
financially.” Mr. Hahn thereafter contacted an attorney and
removed [Appellant] from the project. Eventually, Mr. Hahn was
forced to expend over $160,000 to obtain the necessary permits
and inspections and to bring the project into conformity with the
original architectural plans and engineering specifications.
On April 3, 2007, [Appellant] entered into an agreement
with Monica Cienuch and her husband, Adam, to rebuild the
kitchen in their home in Levittown, Bucks County. The
agreement called for [Appellant] to remove the existing
sunroom, lay a foundation, erect the framing for the kitchen and
install basic electric and plumbing.[2] In May of 2007,
[Appellant] and the [Cienuches] agreed that [Appellant] would
2 We note that the Cienuches’ last name is spelled variously as Cienuch in
the trial court opinion and as Cienuich in the notes of testimony. For the
sake of clarity we shall use the trial court’s spelling, Cienuch.
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also finish the interior of the kitchen. The entire project was to
cost $36,000.
On May 16, 2007, [Appellant] notified Mrs. Cienuch that
the construction permits had been approved. On May 21, 2007,
demolition began. On May 24, 2007, Mrs. Cienuch was advised
that, although an application had been made, the permits had
not yet been obtained. Mrs. Cienuch took matters in her own
hands and was able to obtain the necessary permits on June 1,
2007.
Thereafter work proceeded sporadically and the
[Cienuches] soon began to observe problems. With regard to
the foundation, [Appellant] failed to deliver the foundation
material that had been agreed upon, using demolition debris
instead of high-quality stone. The foundation laid by [Appellant]
did not pass inspection. There were also significant problems
with the framing. Although they had notified [Appellant] of the
defective framing and [Appellant] had assured them problems
with the framing would be corrected, the issues with regard to
the framing remained unaddressed. Despite having received
$30,500 of the total contract price of $36,000, [Appellant] had
only completed the foundation, framing and basic plumbing. The
cabinets and countertops that Mr. and Mrs. Cienuch had paid
$7,000 in advance to [Appellant] were never ordered or
delivered.
As a result of the issues regarding delays, materials and
inferior workmanship, the [Cienuches] retained an attorney,
terminated the contract and demanded a refund of $20,000. In
response, [Appellant] stated that the [Cienuches] were
“welcome to go to court,” adding that he was going to “lock
[them] in the litigation for years.” The [Cienuches] thereafter
retained a new contractor to repair and complete the project.
The additional cost for labor alone was $24,800.
In September of 2007, [Appellant] entered into an
agreement with Anthony Succi and his parents to build a special
needs home for Mr. Succi’s son on the parents’ property in
Philadelphia for $210,000. During the project, the price
increased based on [Appellant’s] representations that additional
money was needed to address unexpected problems. Mr. Succi
paid [Appellant] over $263,900. The project was thereafter shut
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down by the Philadelphia Department of Licenses and Inspection
for non-compliance and lack of permits.
Mr. Succi described the status of the project at the time
[Appellant] was shut down as “a shell.” He further stated,
[Appellant] had constructed a foundation of concrete
that was out of level. It had a 7-foot basement that
leaked at least a foot of water at a minimum. It had
a roof that was put on that leaked profusely. It had
windows partially put in. And the whole outside was
just pure plywood that started rotting because of the
weather and inside had two by four’s.
The Philadelphia Department of Licenses and Inspections
required Mr. Succi to demolish the house for health and safety
reasons. Demolition cost Mr. Succi an additional $15,000.
On June 4, 2008, [Appellant] contracted with Stuart
Abramson to build an addition to Mr. Abramson’s residence in
Buckingham Township, Bucks County. [Appellant] agreed to add
a room, enlarge the garage and another area of the house,
construct a patio and install stucco. The total cost of the project
was $142,000. [Appellant] also agreed to a specific payment
schedule that was tied to the completion of specific items of
work. However, after construction commenced, [Appellant]
frequently requested money ahead of the payment schedule,
claiming that, without the money, he could not order materials.
By January of 2009, Mr. Abramson had paid [Appellant]
$120,000. Mr. Abramson had paid for but did not receive
drywall, electric, the shingle roof, windows, stucco, heating and
air conditioning, a fireplace, hardwood flooring and tile work.
In January of 2009, the Township inspected the project
and issued a stop work order. Much of the work [Appellant] had
done needed to be removed due to code violations.
Mr. Abramson explained the resultant condition of the addition
as follows:
Now I was left with a bare frame. There was nothing
inside. No drywall, minimal insulation, concrete
floors that were poured incorrectly. They made me
bring in a carpenter and take down support
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structures from all the ceilings, because they weren’t
to code.
Mr. Abramson paid other contractors $70,000 to complete the
projects. [Appellant] did not reimburse Mr. Abramson for any of
the work not performed or materials not delivered.
In September of 2008, while Mr. Abramson’s project was
still underway, [Appellant] entered into a preliminary contract
with Andrew Spicer to build an addition to his home in
Pipersville, Bucks County. Once architectural plans were
completed, a final contract was executed in October of 2008.
Under the terms of the final contract, the total cost of the project
was $97,000. Work was to be completed in about six months.
Pursuant to the final contract, Mr. Spicer paid [Appellant]
$21,550 in deposits for materials and [Appellant] began
construction. By Thanksgiving, [Appellant] had dug a hole for a
foundation. By the end of November, early December of 2008,
work on the foundation had begun but had not been completed.
Thereafter, all work stopped until March of 2009.
In a separate agreement, entered into at the end of 2008
or the beginning of 2009, [Appellant] agreed to tile the kitchen
floor that was adjacent to the planned addition for a price of
$4,500 or $5,000. [Appellant] was paid and work commenced.
In March of 2009, [Appellant] resumed work on the
addition. At that time the foundation was poured and framing
was completed. At this stage of the project, [Appellant] began to
demand payments ahead of the payment schedule. While
Mr. Spicer made at least one payment ahead of schedule, he
began to refuse to pay for work until that work was in fact
completed in accordance with the contract.
In May of 2009, the project was terminated by agreement.
By that time, Mr. Spicer had paid [Appellant] $67,000 for work
that was incomplete, defective or not in built with the specified
material. Specifically, the architectural plans called for large
wooden beams, called “LVL” beams, to be used in the framing.
Although those beams were initially installed by [Appellant], he
later replaced them with scrap wood. Numerous tiles installed
by [Appellant] in the kitchen of Mr. Spicer’s home thereafter
“popped” while others cracked. Pieces of the old porcelain tile
floor were dumped in the backyard. [Appellant’s] substandard
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work caused the ceiling of Mr. Spicer’s home to crack and the
porches to sink. The Spicers were unable to correct all of the
problems without demolishing the work and starting over. The
Spicers spent approximately $85,000 to finish the project “as
best [they] could.”
In September of 2009, [Appellant] agreed to build an
addition onto the home of Jeffery and Anette Goldstein in
Richboro, Bucks County, for the use of Mrs. Goldstein’s mother,
Erica Baratz, for $80,000. [Appellant] agreed to demolish an
existing garage and bathroom and to construct a complete
residential structure with a brick patio.
During construction, [Appellant] left a wall to the home
open to the outside, with only a tarp covering certain areas.
Other problems also arose. The project failed multiple
inspections, damage was caused to original property and
[Appellant] began to significantly deviate from the construction
plans. Although work initially began in a timely manner, the
project soon became months behind schedule and [Appellant]
began to continuously demand[] money from Mrs. Baratz. When
Mrs. Baratz exhausted her funds, [Appellant] told her to charge
the work to her credit cards. Ultimately, [Appellant] received
approximately $120,000 from the Goldsteins and Mrs. Baratz.
When Mr. Goldstein voiced complaints, [Appellant] warned him
that he had “political power” and threatened to make
Mr. Goldstein’s life “miserable.”
In July or August of 2010, [Appellant] walked off the job.
At that time, [Appellant] had completed only eighty percent of
the work outlined in the contract and had failed to order or
deliver items that had been paid for in advance, including $5,000
worth of cabinets and two fireplaces. [Appellant] did not finish
constructing the walls, used regular concrete instead of brick on
the patio and had installed inferior air conditioning and heating
units. The Goldsteins and Mrs. Baratz were financially unable to
complete the project. They received estimates that the heating
and air conditioning alone would cost $15,000 to $20,000, an
amount they could not afford. They did expend an additional
$5,000 to complete the necessary electrical and plumbing work
and for a fireplace.
In January of 2010, [Appellant] agreed to build a home in
Margate, New Jersey for Larry Feinman, a resident of Holland,
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Bucks County. Initially, due to their personal relationship,
[Appellant] and Mr. Feinman proceeded without a formal
contract. Mr. Feinman gave [Appellant] blueprints for
construction of a three-story home and [Appellant] agreed to
build the home for $425,000. The price was later raised to
$470,000. After the project ran behind schedule, Mr. Feinman
insisted [on] executing a formal agreement. That agreement
was entered into in June or July of 2010 and set forth an agreed
price of $470,000.
By the end of 2010, Mr. Feinman had paid [Appellant]
more than the contract price. Despite that fact, [Appellant], who
had “been off the job for a while,” appeared to have abandoned
the project, leaving a substantial amount of the project
incomplete. [Appellant] never built permanent stairways to the
upper floors and had not installed any of the plumbing fixtures.
[Appellant] never delivered materials and appliances
Mr. Feinman had paid for, including air conditioner compressors,
kitchen appliances, kitchen cabinets, tile, insulation and drywall.
The total cost of these items was at least $19,000. Although
[Appellant] did install a water heater, he did not install a
“tankless” water heater system as specified in the contract. As a
result of all of these deficiencies, Mr. Feinman was forced to
expend more than $300,000 to complete the home.
On May 20, 2010 after a few months of negotiation,
[Appellant] contracted with Dr. Sherri Landes, a resident of
lvyland, Bucks County, to build a home on her property in
Margate, New Jersey. [Appellant] agreed to construct the home
in accordance with the architectural plans for $395,300.
Although Dr. Landes initially intended to finance the construction
with a construction loan, [Appellant] persuaded her to borrow on
her existing home equity line of credit. A construction loan
would have required bank inspections to determine that the work
had been properly completed before funds were released to pay
for that work. Initially, Dr. Landes followed the practice that
would have been in place if she had obtained a construction
loan, i.e. inspection of the work to determine if the work had
been properly completed before funds were released to pay for
that work. However, [Appellant] eventually began to ask for
money in advance of the payment schedule for materials.
Dr. Landes obtained a second home equity line of credit for
$500,000 to keep the project moving.
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Dr. Landes paid [Appellant] in advance for many of the
materials to be used in the project, i.e., $30,000 for windows,
$5,500 for plumbing fixtures, $15,000 for tile, $1,400 for granite
countertops, $6,500 for railings and $19,375 for external
concrete pillars. [Appellant] never purchased these items.
Dr. Landes ultimately had to purchase these items directly from
the suppliers to complete the project. Dr. Landes paid
[Appellant] and his suppliers a total of $604,465.17 on a home
she had contracted to have built for $395,300.
In March of 2011, [Appellant] asked for an additional
$55,500 to complete the job. At the end of March, Dr. Landes
asked [Appellant] to provide an accounting of project
expenditures. [Appellant] provided her with a list of
expenditures that included payments for [Appellant]’s personal
expenses, payments to suppliers that had not been made,
payments for labor and materials for work that had not been
done, and other unauthorized expenditures. Many line items
were left blank. No receipts were provided.
Work ceased in April of 2011. Dr. Landes described the
condition of the property at that time as follows:
It contained a tile roof with no underlayment,
meaning no flashing, nothing to prevent it from
leaking. The tiles that were on there were not the
tiles that he showed me initially. They ended up to
be Northern roof tiles which I paid for, again, as I
mentioned. And they all had to be removed. And I
had to pay an extra [$] 25,000 for the roof to be
fixed so that it wouldn’t leak. There was a thin coat
of stucco on the outside that was placed before the
windows were put in. I questioned that but, you
know, [Appellant] said, “You are not a builder. You
don’t know anything.” But I had built a house before
and I knew stucco shouldn’t be placed before
windows. So that had to be removed. It was a thin
coat that would have leaked. And there were no
flashings. So ultimately I had to pay another – I
have the figures. I think it was another 17,500 or
maybe even more for stucco to properly be
constructed.
Q. Had you already paid [Appellant] for that stucco?
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A. Yes. I paid for everything on the contract. And so
in addition to the roof and the framing, there was
nothing inside of the house. There were no walls,
there was no plumbing, there was no interior,
nothing. The only thing that was, there was a
decorative marble fireplace surround that I had
purchased. [Appellant] called me one day and said,
“We are ready for your fireplace surround,” so I
thought that walls were up. I thought the drywall
was up and interior was finished. And when I drive
down from Pennsylvania to New Jersey to actually
see the house, I saw the fireplace surround, but no
walls. And when the house was finally built, it had to
be retrofitted because it was just a decorative thing
put up with no walls. There was really nothing else
there. There were balconies and they had to be
resurfaced and redone because they weren’t
constructed properly. And nothing else that I had
paid for was present.
* * *
The exterior concrete finishes were not done which
included a driveway, sidewalk and that kind of thing.
HVAC installations, not done; electrical work, not
done; plumbing installations, not done; drywall
interior finishes, not done; all interior and exterior
trim finished, decks and rails only half done.
Because I did have decking, but I had no windows
and I had no interior, obviously. So this includes
interior trim, doors, windows, railings, base board
column, hardwood flooring, not done; marble tile
flooring in bathrooms not done; marble tile, all the
interior work, nothing done; all walls and ceilings
painted, not done; kitchen fixtures, not done.
Dr. Landes paid an additional $400,000 to finish building
the house, spending in total, one million dollars to build a
$400,000 home. [Appellant] never reimbursed Dr. Landes for
work not performed or for materials not delivered. Instead, he
filed a mechanic’s lien against her property for $150,000. When
a potential customer, Phil Karali, called Dr. Landes to inquire
about [Appellant’s] job performance, she told him that she paid
[Appellant] $604,000 for a home and got a shell, a roof and a
framed structure. [Appellant] sued her for defamation of
character and tortious interference with a contract.
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In November of 2011, [Appellant] contracted with Cindy
and Dale Ross to remodel the first floor of their residence in
Levittown, Bucks County. [Appellant] agreed to completely gut
the first floor, rebuild the bathroom and kitchen and install
drywall and new heater for $94,500. [Appellant] told the Rosses
that they would have to move out of their residence by
January 9, 2012 but that they would be able to return on
March 8, 2012. In May of that year, a cease work order was
issued by the local authorities due to the fact that [Appellant]
had not obtained the proper permits. When the project was shut
down, the Rosses terminated their contract.
Although the Rosses had paid [Appellant] $86,583 of the
$94,500 contract price, [Appellant] had completed only 25 to 35
percent of the work specified in the agreement. Mrs. Ross
testified that she was left with “a gutted empty house, no walls,
no plumbing, no electric.” The Rosses never receive[d] all of the
materials they had paid for in advance, including granite counter
tops and insulation. [Appellant] never reimbursed Mrs. Ross for
work not finished or materials not delivered. He told Mrs. Ross
that he would complete the project if she paid him an additional
$35,000. In order to enjoy the use of their home, the Rosses
were forced to pay another contractor $200,000 to correct and
complete the renovation.
In October of 2013, [Appellant] contracted with
George Monti to rebuild a roof on a commercial property located
in Tullytown, Bucks County for $28,875. This contract was later
increased by $6,575 at [Appellant’s] suggestion to add plywood
to the “decking.” After Mr. Monti agreed to the addendum,
[Appellant] began to regularly request more money in advance
for materials. The project, which [Appellant] represented could
be completed in a few days, was still not completed as of April of
the following year. In the interim, extensive water damage was
caused to the interior of the building by “leaks” in the incomplete
roof. Mr. Monti hired another roofer to complete the project for
$50,000. In addition, Mr. Monti suffered a substantial financial
loss due to the damage to his real and personal property caused
by water damage.
In August of 2013, shortly before [Appellant] contracted
with Mr. Monti to rebuild his roof, [Appellant] obtained a
commercial insurance policy from Erie Insurance.
Timothy Pantano, a salesman and customer service
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representative for Erie Insurance, sold the policy to [Appellant].
During the application process, [Appellant] made several
misrepresentations. He told Mr. Pantano that he had not filed
for bankruptcy in the past five years, that he did not subcontract
any work and that he did not accept jobs that only involved new
roofing or reroofing. [Appellant] later signed the application,
certifying that the information he had given was true and
complete.
Trial Court Opinion, 5/22/17, at 2–16 (citations omitted).
Following the trial, the jury found Appellant guilty of two counts of
home improvement fraud, twelve counts of deceptive or fraudulent business
practices, twelve counts of theft by deception and one count of insurance
fraud and the trial court sentenced him to fourteen to twenty-eight years of
imprisonment. Appellant eventually was found to be an eligible offender for
purposes of the Recidivism Risk Reduction Incentive Act (“RRRI”) and his
aggregate RRRI minimum sentence was reduced to eleven and a half years.
Appellant filed his notice of appeal on February 17, 2015, and following
a convoluted appeals process,3 the case is now before this Court.
Appellant raises the following issues for our review:
I. Were fourteen of [Appellant’s] convictions barred by the
statute of limitations because those counts were discrete
offenses, separate and apart from the timely charged offenses?
II. Did the Court of Common Pleas of Bucks County lack
jurisdiction over crimes committed in Philadelphia County and/or
the State of New Jersey?
3 The trial court’s supplemental opinion sets forth the events and filings that
ultimately resulted in Appellant’s current appeal. Trial Court Opinion,
5/22/17, at 1–2.
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III. Was the Court of Common Pleas of Bucks County not a
proper venue for crimes committed in Philadelphia County and
/or the State of New Jersey?
IV. Did the trial court impose an illegal and unconstitutional
sentence when the court sentenced [Appellant] with the intent to
impose a life sentence?
V. Did the trial court err when the court concluded [Appellant]
waived his appellate rights because he did not obtain trial
transcripts for the court’s review?4
Appellant’s Brief at 5.
Turning to Appellant’s first issue, he argues that fourteen of his
convictions, i.e., the counts involving Mrs. Parker, Mr. Shulang, the Hahns,
the Cienuches, Mr. Succi, Mr. Abramson and Mr. Spicer, are barred by the
statute of limitations. Id. at 11–21. Appellant asserts that the trial court
erred when it found his crimes constituted a continuing course of conduct for
purposes of the running of the statute of limitations. Id. at 13. He further
argues that the legislature did not intend to treat theft by deception and
deceptive business practices as continuing offenses for purposes of tolling
the five-year statute of limitations. Id. at 16.
“A question regarding the application of the statute of limitations is a
question of law.” Commonwealth v. Riding, 68 A.3d 990, 993 (Pa. Super.
2013). Thus, “our standard of review is de novo and scope of review is
plenary.” Commonwealth v. Vega-Reyes, 131 A.3d 61, 63 (Pa. Super.
2016). “Statutes of limitations are of course liberally construed in favor of
4 Appellant’s fifth issue is moot as this Court eventually obtained the
transcripts and is now addressing the merits of his appeal.
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the defendant and against the Commonwealth.” Commonwealth v.
Cardonick, 292 A.2d 402, 407 (Pa. 1972) (citations omitted).
Appellant’s convictions for theft by deception and deceptive or
fraudulent business practices are subject to a five-year statute of limitations.
42 Pa.C.S. § 5552(b)(1). In this case, prosecution was commenced on
February 10, 2014, when a warrant was issued for Appellant’s arrest.
Commonwealth v. McSloy, 751 A.2d 666, 668 (Pa. Super. 2000); 42
Pa.C.S. § 5552(e). Thus, barring any applicable exceptions, the statute of
limitations will act to bar prosecution for any crimes committed before
February 10, 2009. A crime has been committed when every element of the
crime occurs, “or, if a legislative purpose to prohibit a continuing course of
conduct plainly appears, at the time when the course of conduct or the
complicity of the defendant therein is terminated.” 42 Pa.C.S. § 5552(d).
Relying on the continuing-course-of-conduct language in 42 Pa.C.S.
§ 5552(d), the trial court found that Appellant’s actions were part of an
ongoing course of conduct and that the statute of limitations had not run on
any of the crimes for which Appellant was convicted. Trial Court Opinion,
5/22/17, at 18. Specifically, the court found that the evidence established
that Appellant “engaged in Deceptive or Fraudulent Business Practices and
Theft by Deception throughout 2005, 2006, 2007, 2008, 2009, 2010, 2011,
2012, and 2013 and continued into 2014.” Id. at 19.
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Appellant asserts that his crimes were intermittent, did not constitute
a single, continuous act, and failed to show a repetitive pattern of behavior.
Appellant’s Brief at 14. Specifically, Appellant argues that the cases involved
“different persons, in different locations, with different types of construction
projects, and with different allegations of how the relationship with Appellant
deteriorated.” Id. at 15. We agree.
Preliminarily, we note that 42 Pa.C.S. § 5552(d) has been applied
primarily to conspiracy cases. Commonwealth v. Volk, 444 A.2d 1182,
1187 (Pa. Super. 1982) (finding that conspiracy is a continuing offense and
“any conspiracy that is renewed by repetitions may be prosecuted at any
time within two years after the commission of the last offense”). Section
5552(d) has also been utilized for cases involving kidnapping as a continuing
offense and receiving stolen property. See Commonwealth v. Stewart,
544 A.2d 1384, 1388 (Pa. Super. 1988) (applying Section 5552(d) to a case
involving kidnapping and finding the conviction was not barred by the
statute of limitations because the crime included not only the initial
kidnapping, which had occurred outside the statute of limitations, but also
included the continuing conduct of keeping the child outside of the
custodian’s dominion); Commonwealth v. Farrar, 413 A.2d 1094, 1098
(Pa. Super. 1979) (finding that receiving and retaining stolen property is a
continuing offense for as long as the perpetrator retains the property for
purposes of determining when the statute of limitations will run).
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A review of relevant jurisprudence does not reveal any case law in
which a court extended the statute of limitations as set forth in Section
5552(d) to an action for theft by deception or fraudulent business practices
involving different victims over an extended period. See Commonwealth
v. Fisher, 682 A.2d 811, 818 (Pa. Super. 1996) (finding that where
defendant was convicted for theft by deception pursuant to a scheme where
he advertised and sold plots of land to a number of victims, the five-year
statute of limitations began to run on the date of the defendant’s last
deception for each victim of each individual count); Kissinger v.
Commonwealth, 488 A.2d 401, 403–404, n. 8 (Pa. Cmwlth. 1985)5
(finding that for purposes of 42 Pa.C.S. § 5552(d), Appellant’s failure to
connect to the township sewer system, despite two notices that he had 60
days to do so, over a year apart, was not a continuing crime and Appellant
could be convicted twice for failing to comply with both notices).
We further note that we are unable to find a legislative purpose
prohibiting a continuing course of conduct “plainly appears” in either 18
Pa.C.S. § 3922 (Theft by Deception) or 18 Pa.C.S. § 4107 (Deceptive or
Fraudulent Business Practices). We are aware that pursuant to 18 Pa.C.S.
§ 3903(c)(3) and 18 Pa.C.S. § 4107(a.1)(2), the amount of money involved
in the proscribed acts may be aggregated to determine the grade of offenses
5 We note that we are not bound by the decision in Kissinger v.
Commonwealth, 488 A.2d 401 (Pa. Cmwlth. 1985), but cite it as
persuasive authority.
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as long as the crimes are committed as part of one scheme or course of
conduct. However, it is well established that statutes of limitation must be
construed against the Commonwealth and in favor of the appellant.
Cardonick, 292 A.2d at 407. Given the above, we are unable to conclude
that the required plain purpose is evidenced by a corollary statute allowing
for aggregation of value for purposes of sentencing. Thus, we are
constrained to agree with Appellant that the continuing-conduct language
found in Section 5552(d) does not act to extend the statute of limitations in
this case.
Section 5552(d) does not apply to extend the statute of limitations in
this case, however, 42 Pa.C.S. § 5552(c)(1) allows prosecution for an
otherwise time-barred offense for “[a]ny offense a material element of which
is either fraud or a breach of a fiduciary obligation within one year after
discovery of the offense by an aggrieved party. . . but in no case shall this
paragraph extend the period of limitations otherwise applicable for more
than three years.” Id.
Relying on Section 5552(c)(1), the trial court alternatively held that
any crime which occurred in the eight years prior to the commencement of
prosecution on February 10, 2014, was timely prosecuted. The trial court
found that although the victims in this case may have been aware that
Appellant was deficient in his performance as a contractor, his intent to
deceive and defraud them was unknown until after the charges were filed
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against Appellant on February 10, 2014. Trial Court Opinion, 5/22/17, at
22. Specifically, the trial court found that “[t]he victims did not have actual
knowledge that a criminal offense had been committed until investigators
were able to piece together a pattern of behavior sufficient to establish
fraudulent intent as opposed to mere sloppy business practices.” Id.
Thus, the trial court found that pursuant to 42 Pa.C.S. § 5552(c)(1),
Appellant “was therefore timely prosecuted for any offenses occurring within
eight years of the commission of the crime.” Id. We agree. Pursuant to
Section 5552(c)(1), discovery of the fraud “is not satisfied by mere
suspicion, it requires acquisition of knowledge that a penal statute has been
violated.” Commonwealth v. McSloy, 751 A.2d 666, 669 (Pa. Super.
2000) (finding fraud was not known until coconspirator testified to the fraud
before a grand jury). See also, Commonwealth v. Hawkins, 439 A.2d
748, 750 (Pa. Super. 1982) (finding that although there were events that
could have indicated fraud prior to actual discovery, discovery of fraud
required actual knowledge of the fraud).
In his brief to this Court, Appellant concedes that Section 5552(c)(1) is
the exception the “legislature intended as the mechanism to toll the statute
of limitations for a crime like Deceptive Business Practices.” Appellant’s
Brief at 18. Appellant argues, however, that this rule does not apply
because Appellant’s victims were aware that Appellant failed to finish the
work before their relationships with Appellant ended. Id. at 18. We reject
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such a claim. The mere fact that Appellant failed to complete the contracted
for work on the victims’ homes did not equate with knowledge that Appellant
had engaged in fraudulent and deceptive practices.
As discussed supra, Appellant’s fraud was discovered on the day the
warrant was issued for his arrest, February 10, 2014. Pursuant to 42
Pa.C.S. § 5552(c)(1), the statute of limitations for Appellant’s crimes is
extended for an additional three years; thus Appellant was timely prosecuted
for any crime occurring after February 10, 2006.
We now turn to the individual victims and charged counts to determine
whether the statute of limitations bars prosecution. Appellant asserts that
offenses arising from his contacts with Mrs. Parker, Mr. Shulang, the Hahns,
the Cienuches, Mr. Succi, Mr. Abramson and Mr. Spicer are all barred by the
five-year statute of limitations because the crimes took place before
February 10, 2009, which was five years from the day on which the warrant
for Appellant’s arrest was issued. Appellant’s Brief at 12. However, as
discussed above, pursuant to Section 5552(c)(1), the statute of limitations
in this case extends back eight years, through February 10, 2006.
After a review of the facts in this case, we find that the Appellant’s
crimes against Mrs. Parker, Mr. Shulang, the Hahns, the Cienuches,
Mr. Succi, Mr. Abramson and Mr. Spicer occurred or continued beyond
February 10, 2006, and therefore, were timely prosecuted. Turning first to
Mrs. Parker, Appellant and Mrs. Parker entered into a contract in June of
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2005 and Appellant was on her property for approximately ninety days.
N.T., 12/5/14, at 135. However, after he stopped working on her property,
Appellant continued his fraudulent conduct by placing a mechanic’s lien on
Mrs. Parker’s property. Id. at 147. Indeed, the suit relating to the
mechanic’s lien continued well into 2008, thus bringing it within the eight-
year statute of limitations. Id.; Trial Exhibit C-8, Deposition of Appellant,
5/30/08. See Commonwealth v. Fisher, 682 A.2d 811, 818 (Pa. Super.
1996) (“Thus we conclude that the prosecution on each count must
commence within five years of [appellant’s] last deception relating to that
count.”).
Next, Mr. Shulang testified that Appellant began working on his
property in August of 2005 and was terminated approximately on
February 8, 2006. N.T., 12/5/14, at 97. Appellant, however, continued his
deceptive and fraudulent practices by placing a mechanic’s lien on
Mr. Shulang’s property in May of 2006, claiming that he was owed more
money for various work he allegedly had done on Mr. Shulang’s home,
bringing Appellant’s crimes against Mr. Shulang within the eight-year statute
of limitations. Id. at 100. See Fisher, 682 A.2d at 818.
Appellant’s convictions for his actions against the Hahns and the
Cienuchs also occurred within the required statutory period. Mr. Hahn
testified that he and Appellant entered into a contract for work on his home
in August of 2006, within the eight-year statute of limitations. N.T.,
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12/5/14, at 172–173. Similarly, Mrs. Cienuch testified at trial that she
entered into a contract with Appellant on April 3, 2007, again within the
required eight-year window. N.T., 12/8/14, at 7.
The convictions relating to Appellant’s crimes against Mr. Succi,
Mr. Abramson, and Mr. Spicer also occurred within the relevant statute of
limitations. We note Mr. Succi hired Appellant to construct a second home
on his property for his son in 2007, within the statute of limitations. N.T.,
12/5/14, at 47. Appellant began working for Mr. Abramson in 2008 and the
township issued a stop work order for Mr. Abramson’s property on February
10, 2009, which falls within the time required by the statute of limitations.
N.T., 12/8/14, at 49–50. We find Appellant was timely prosecuted for the
crimes Mr. Abramson. As to Mr. Spicer, it is undisputed that Appellant
continued to work for Mr. Spicer until May of 2009. N.T., 12/9/14, at 42.
Thus, it is clear that Appellant’s criminal conduct toward Mr. Spicer
continued after February of 2006, and the statute of limitations does not bar
prosecution and conviction for those crimes. Appellant was timely
prosecuted for all offenses in the instant case.
In support of his second issue, Appellant argues that the Court of
Common Pleas of Bucks County lacked jurisdiction over Appellant for the
crimes committed in Philadelphia County or the State of New Jersey.
Appellant’s Brief at 5. This Court set forth the governing standards relating
to jurisdiction in a criminal case:
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Subject matter jurisdiction speaks to the competency of a court
to hear and adjudicate the type of controversy presented.
Jurisdiction is purely a question of law; the appellate standard of
review is de novo and the scope of review is plenary.
Controversies stemming from violations of the Crimes Code are
entrusted to the original jurisdiction of the courts of common
pleas for resolution. All jurists within that tier of the unified
judicial system are competent to hear and resolve a matter
arising out of the Crimes Code.
Commonwealth v. Elia, 83 A.3d 254, 265 (Pa. Super. 2013) (citations
omitted).
Appellant argues that jurisdiction was not proper for the convictions
for theft by deception or fraudulent business practices that arose out of
construction in Philadelphia County relating to Mr. Succi and New Jersey
relating to Dr. Landes and Mr. Feinman. As to the New Jersey victims,
Appellant concedes that the trial court had jurisdiction over the counts for
theft by deception against both victims. Appellant’s Brief at 23. He asserts,
however, that the trial court did not have jurisdiction over the counts for
deceptive or fraudulent business practices. Id. Appellant also argues that
the trial court did not have jurisdiction over the crimes against Mr. Succi.6
Appellant’s claim is without merit. Our Supreme Court has held
unequivocally that “all courts of common pleas have statewide subject
6 Appellant failed to raise the issue of alleged improper jurisdiction over the
crimes against Mr. Succi in his 1925(b) Statement. Failure to raise an issue
in a 1925(b) Statement results in waiver; jurisdiction, however, is not
waivable and may be raised at any time, and sua sponte. Commonwealth
v. Little, 314 A.2d 270, 272 (Pa. 1974) (“An objection to lack of subject-
matter jurisdiction can never be waived; it may be raised at any stage in the
proceedings by the parties or by a court on its own motion.”).
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matter jurisdiction in all cases arising under the Crimes Code.” See
Commonwealth v. Bethea, 828 A.2d 1066, 1074 (Pa. 2003). Subject
matter jurisdiction references the court’s power to adjudicate while venue
addresses the convenience of the locality. Id. Although the terms are often
used interchangeably, venue cannot exist without subject matter jurisdiction
and they are distinct. Id. at 1075. “Rules of venue recognize the propriety
of imposing geographic limitations on the exercise of jurisdiction. Venue in a
criminal action properly belongs in the place where the crime occurred.” Id.
Indeed, although Appellant purports to argue jurisdiction was improper, his
argument relates to the propriety of the venue, not jurisdiction. 7 The trial
court properly exercised its jurisdiction in this matter.
In his third issue, Appellant contends that Bucks County was not the
proper venue for the crimes committed in Philadelphia County against
Mr. Succi or in the State of New Jersey against Dr. Landes and Mr. Feinman.
Appellant’s Brief at 5. In his omnibus pretrial motion, Appellant sought
dismissal of the counts allegedly arising in Philadelphia alone. Omnibus
Pretrial Motion, 11/25/14, at ¶¶ 5–9. Appellant did not seek dismissal of the
New Jersey cases based upon improper venue before the trial court, thus,
his argument is waived on appeal. Commonwealth v. Yockey, 158 A.3d
7 Appellant relies on case law that was mired in the confusion relating to the
interchangeability between venue and jurisdiction, which Bethea, 828 A.2d
1066, addressed.
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1246, 1259 (Pa. Super. 2017) (“issues not raised in the lower court are
waived and cannot be raised for the first time on appeal.”).
Moreover, Appellant filed a motion to dismiss for lack of proper venue;
however, dismissal is not the proper remedy for an allegedly improper of
venue. Commonwealth v. Gross, 101 A.3d 28, 36 (Pa. 2014) (“[N]o
provision in our criminal procedure rules permits dismissal as a remedy for
improper venue”). Instead of dismissal, “our rules repeatedly speak to
transferring cases to another judicial district when improper venue is
determined.” Id. “As venue is predominantly a procedural matter, and
pertains to the locality most convenient to the proper disposition of a
matter, dismissal is inappropriate and unjust where a court merely finds
another judicial district provides a more appropriate forum.” Id. (citations
omitted). Indeed, “the purpose of venue, apart from the manner in which it
relates to subject matter jurisdiction, is a matter of convenience to the
litigants.” Commonwealth v. Miskovitch, 64 A.3d 672, 689 (Pa. Super.
2013). Further, as in this case, where jurisdiction is proper, venue is
primarily a matter of procedure, and Appellant is required to show he was
prejudiced because the trial was held in Bucks County rather than another
location. Id. (“Thus even assuming venue was improper, Appellant must
demonstrate prejudice in order to be entitled to relief at least . . . where the
choice of venue is purely procedural and not jurisdictional in nature.).
Appellant has failed to make the necessary showing of prejudice. Appellant’s
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claim that the trial court erred when it denied his motion to dismiss for lack
of venue is without merit.
In support of his fourth issue, Appellant asserts that the trial court
imposed an illegal and unconstitutional sentence when it sentenced him
“with the intent to impose a life sentence.” Appellant’s Brief at 5.
Preliminarily, we note that Appellant failed to raise a challenge to the
constitutionality of his sentence in his Pa.R.A.P. 1925(b) statement. 8 It is
well established that an issue not raised in a 1925(b) statement is waived
for purposes of appeal. Pa.R.A.P. 1925(b)(4)(vii). Appellant asserts, with
no significant analysis, that his claim of an Eighth Amendment violation
constitutes a challenge to the legality of his sentence and that challenge
cannot be waived. Appellant’s Brief at 25. Indeed, although a challenge to
the discretionary aspects of sentencing is subject to waiver, the legality of a
sentence cannot be waived. Commonwealth v. Schutzues, 54 A.3d 86,
91 (Pa. Super. 2012). Appellant argues that his sentence is illegal because
it is an unconstitutional violation of the Eighth Amendment’s prohibition
against cruel and unusual punishment. Appellant’s Brief at 25–27. Whether
Appellant’s challenge implicates the legality of his sentence presents a pure
question of law. Commonwealth v. Foster, 17 A.3d 332, 340 n. 13 (Pa.
2011). Our standard of review is de novo and our scope of review is
plenary. Id.8 Appellant also failed to file a post-sentence motion as required by
Pa.R.Crim.P. 720 or a Pa.R.A.P. 2119 statement with this Court.
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Contrary to Appellant’s claim that an alleged Eighth Amendment
violation constitutes a challenge to the legality of the sentence, there is no
bright line rule establishing whether a challenge to a sentence, constitutional
or otherwise, implicates the legal or discretionary aspects of that sentence.
See Commonwealth v. Spruill, 80 A.3d 453, 460–461 (Pa. 2013) (noting
the Supreme Court’s “experience with claims allegedly implicating sentence
legality has not always been smooth” and noting the complexities involved in
the issue). However, this Court has stated that “the term ‘illegal sentence’
is a term of art that our courts apply narrowly, to a relatively small class of
cases.” Commonwealth v. Robinson, 931 A.2d 15, 21 (Pa. Super. 2007).
“Legality of sentence issues occur generally either: (1) when a trial
court’s traditional authority to use discretion in the act of sentencing is
somehow affected and/or (2) when the sentence imposed is patently
inconsistent with the sentencing parameter set forth by the General
Assembly.” Schutzues, 54 A.3d at 92 (quoting Commonwealth v. Foster,
17 A.3d 332, 342 (Pa. 2011)). Most other challenges implicate the
discretionary aspects of a sentence, “even though the claim may involve a
legal question, a patently obvious mathematical error, or an issue of
constitutional dimension.” Robinson, 931 A.2d at 21 (finding that a claim
of vindictiveness by the trial court when sentencing a defendant does not
implicate the legality of the sentence). Indeed, where, as here, an
appellant argues that the sentencing court exercised its discretion in a way
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that was harsh, unreasonable, or motivated by impermissible factors such as
personal animus or revenge, those contentions “are the very hallmarks of a
claim that implicates the discretionary aspects of a sentence.” Id.In this case, Appellant argues that his sentence is excessive in that the
trial court “expressed an intent to impose a sentence that would keep
Appellant incarcerated for the remainder of his natural life,” as evidenced by
a statement the trial court made during Appellant’s sentencing. Appellant’s
Brief at 27. This assertion of bad intent on the part of the trial court does
not implicate the legality of Appellant’s sentence. Robinson, 931 A.2d at
21. Instead, it is a challenge to the discretionary aspect of his sentence, a
challenge which Appellant has waived due to his failure to include the issue
in his 1925(b) Statement and post-sentencing motion.
Even assuming, arguendo, that Appellant did not waive his Eighth
Amendment’s argument, he would not be due any relief. “The Eighth
Amendment does not require strict proportionality between the crime
committed and the sentence imposed; rather, it forbids only extreme
sentences that are grossly disproportionate to the crime.” Commonwealth
v. Baker, 78 A.3d 1044, 1047 (Pa. 2013). In order to determine if a
sentence runs afoul of the Eighth Amendment, this Court will apply a three-
pronged test:
[A] court’s proportionality analysis under the Eighth Amendment
should be guided by objective criteria, including (i) the gravity of
the offense and the harshness of the penalty; (ii) the sentences
imposed on other criminals in the same jurisdiction; and (iii) the
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sentences imposed for commission of the same crime in other
jurisdictions.
Id. (quoting Commonwealth v. Spells, 612 A.2d 458, 462 (Pa. Super.
1992) (en banc)). Although there are three prongs to the test, this Court “is
not obligated to reach the second and third prongs of the Spells test unless
a threshold comparison of the crime committed and the sentence imposed
leads to an interference of gross disproportionality.” Baker, 78 A.3d at
1047.
Appellant does not, and indeed, could not, argue that the trial court’s
sentence exceeded any statutory maximum; rather he posits that his
sentence is “grossly disproportionate to his non-violent offenses,”
particularly where he “had no prior criminal history and had a prior record
score of zero.” Appellant’s Brief at 27. In the instant case, the sentence
imposed by the trial court was within the sentencing guidelines, save the
sentence imposed for insurance fraud,9 and none of the sentences exceeded
any statutory maximums. The trial court found no mitigating factors in this
case and noted Appellant has failed to show any remorse for his crimes.
N.T., 1/16/15, at 61, 66.
Moreover, the fact that Appellant was a first-time offender and his
crimes were of a non-violent nature does not minimize the seriousness of
the offenses, the amount of money at issue, or the impact on his victims.
9 The trial court explained that it was exceeding the guidelines and
sentencing Appellant to the statutory maximum because he fraudulently
used the insurance company’s good name, and lead his victims to believe
they would be made whole if there were any problems, when he knew that
was not the case. N.T., 1/16/15, at 72–73.
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Indeed, Appellant defrauded his victims out of hundreds of thousands of
dollars. In addition, Appellant threatened and intimidated his victims if they
sought any sort of remedy, legal or otherwise. Appellant used the legal
system to continue to defraud his victims by placing mechanic’s liens on
several victims’ homes and suing another for libel. He declared bankruptcy
in order to render himself essentially judgment proof. Appellant’s actions
have financially devastated multiple victims. Further, as the trial court
noted, “It is very clear based on [Appellant’s] bankruptcy, his removal and
dissipation of assets, that restitution is not a real possibility to these people.”
N.T. 1/16/15, at 74.
Given the facts of this case, and the manner in which Appellant
defrauded and exploited his victims, we find Appellant cannot satisfy the first
prong of the proportionality test; thus, we need not analyze further.
Appellant has failed to show that his sentence is illegal and violative of the
Eighth Amendment. Appellant’s argument lacks merit, and he is entitled to
no relief on that ground.
Judgment of sentence affirmed.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 10/12/2017
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