Com. v. Kolovich, R.

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NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
COMMONWEALTH OF PENNSYLVANIA IN THE SUPERIOR COURT OF
PENNSYLVANIA
Appellee
v.
ROBERT ANTHONY KOLOVICH
Appellant No. 2220 MDA 2015
Appeal from the Judgment of Sentence September 28, 2015
In the Court of Common Pleas of Bradford County
Criminal Division at No(s): CP-08-CR-0000768-20414
BEFORE: BOWES, J., LAZARUS, J., and MUSMANNO, J.
MEMORANDUM BY LAZARUS, J.: FILED MAY 17, 2017
Robert Anthony Kolovich appeals from his judgment of sentence,
entered in the Court of Common Pleas of Bradford County, after a jury found
him guilty of multiple charges related to the theft of funds he received from
homeowners for the construction of a deck. Upon careful review, we affirm.
The trial court set forth the facts of this matter as follows:
[Bobbee and George] Wilcox saw an advertisement for a decking
system so they contacted [Kolovich]. [Kolovich] came to their
home in May, 2013 and promised to complete the “deck fitter
system.” A [p]urchase [a]greement dated May 29, 2013 was
signed and [Kolovich was] given a downpayment of $9,000.00
towards the total price of $18,000.00. Work was to begin within
five to seven weeks. [Kolovich] did not appear in the five to
seven weeks. Mrs. Wilcox contacted him numerous times and
even called the distributor of the materials. She [spoke] to him
approximately three times. [Kolovich] told Mrs. Wilcox that as a
result of hurricanes, it was difficult to obtain materials. He also
advised that it would not be long. [Kolovich] did appear at the
Wilcox home a second time and advised that he would get there
to complete the work. The Wilcoxes travelled to [Kolovich’s]
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place of business in Selinsgrove, Pennsylvania twice. One of the
times was at Thanksgiving. Both times, no one was in the office.
Mrs. Wilcox wrote a letter requesting that money be returned
and sent it to both the business address and his home address.
The letter with the business address was returned to her,
however, the letter to the home address was not. The Wilcoxes
have not had their money returned or the work completed or
materials delivered. Further, they have not heard from
[Kolovich]. Mr. and Mrs. Wilcox [were] 85 and 81 years of
age[,] respectively[,] at the time of trial.
Trial Court Opinion, 3/30/16, at 2.
On August 3, 2015, Kolovich filed a motion to bar prosecution on
double jeopardy grounds. Kolovich had been charged in Sullivan, Centre
and Luzerne Counties with similar crimes and both prosecutions ended in
either dismissal or acquittal. Thus, Kolovich asserted, the Bradford County
prosecution was barred under 18 Pa.C.S.A. § 110, as well as the double
jeopardy clauses of the United States and Pennsylvania constitutions. The
trial court denied that motion. On August 5, 2015, a jury convicted Kolovich
of two counts of deceptive business practices1 and one count each of theft
by deception2 and receiving stolen property (RSP).3 The trial court
sentenced Kolovich on September 28, 2015 to an aggregate term of 11
months’ to 23 months, 29 days’ incarceration, followed by 24 months of
probation. He received credit for 45 days served. Kolovich’s post-sentence
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1
18 Pa.C.S.A. § 4107(a)(2) and (6).
2
18 Pa.C.S.A. § 3922(a)(1).
3
18 Pa.C.S.A. § 3925(a).
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motion was denied and this timely appeal follows, in which he raises the
following issues for our review:
1. Did the trial court err in denying [Kolovich’s] [m]otion to
[b]ar [p]rosecution [p]ursuant to the [d]ouble [j]eopardy
[c]lause of the [f]ederal and [s]tate [c]onstitutions and [section]
110 [d]ue to [d]ismissal of [c]harges in Luzerne and Sullivan
Counties and the [a]cquittal of [c]harges in Centre County, PA?
2. Was the verdict against the weight of the evidence such that
a jury of reasonable persons would not have been satisfied as to
[Kolovich’s] guilt?
3. Did the trial court err in refusing to grant [Kolovich] credit for
time served where he had been continually incarcerated since
August 1, 2014 on related charges, under 42 Pa.C.S.A. § 9760?
Brief of Appellant, at 4.
Kolovich first asserts that the trial court erred in finding that his
prosecution was not barred on double jeopardy grounds. Kolovich claims
that the charges in this matter stemmed from the same criminal episode as
the charges that he was acquitted of or were dismissed in three other
counties. Accordingly, he argues prosecution of the charges involving Mr.
and Mrs. Wilcox should have been barred pursuant to section 110 and the
double jeopardy clauses of the U.S. and Pennsylvania constitutions. We
disagree.
Section 110, known as the compulsory joinder rule, provides, in
relevant part, as follows:
Although a prosecution is for a violation of a different provision
of the statutes than a former prosecution or is based on different
facts, it is barred by such former prosecution under the following
circumstances:
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(1) The former prosecution resulted in an acquittal or in a
conviction . . . and the subsequent prosecution is for:
...
(ii) any offense based on the same conduct or
arising from the same criminal episode, if such
offense was known to the appropriate prosecuting
officer at the time of the commencement of the first
trial and occurred within the same judicial district as
the former prosecution unless the court ordered a
separate trial of the charge of such offense[.]
18 Pa.C.S.A. § 110
Stated more succinctly, section 110 bars a subsequent prosecution if
the following test is met:
(1) the former prosecution resulted in an acquittal or conviction;
(2) the current prosecution was based on the same criminal
conduct or arose from the same criminal episode; (3) the
prosecutor in the subsequent trial was aware of the charges
before the first trial; and (4) all charges [occurred] within the
same judicial district as the former prosecution.
Commonwealth v. Reid, 77 A.3d 579, 582 (Pa. 2013), quoting
Commonwealth v. Nolan, 855 A.2d 834, 839 (Pa. 2004). Each prong of
this test must be met for section 110 to apply. Commonwealth v. Fithian,
961 A.2d 66, 72 (Pa. 2009).
Here, we need only address the fourth prong of the compulsory joinder
test, which requires that the current offense occurred within the same
judicial district of the former prosecution. The victims in this case resided
in Bradford County, the situs of the instant prosecution.4 The prior
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4
Kolovich’s place of business was located in Selinsgrove, Snyder County.
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prosecutions occurred in Sullivan, Centre and Luzerne Counties. Thus, on its
face, the statute does not appear to bar the Bradford County prosecution.
Kolovich, however, argues that the prior prosecutions were part of the same
criminal episode as the alleged offenses underlying the Bradford County
charges. Thus, Kolovich asserts, the latter prosecution should be barred.
He is entitled to no relief.
In Fithian, supra, our Supreme Court addressed a Commonwealth
appeal filed after the Court of Common Pleas of Delaware County dismissed
a drug-related prosecution on the basis of section 110. There, the
defendants had engaged in a drug transaction, various components of which
occurred in Philadelphia, Montgomery and Delaware Counties. Following the
consummation of the transaction, the defendants were apprehended in
Montgomery County, where they were charged with, and ultimately pled
guilty to, conspiracy and possession with intent to deliver (PWID).
Simultaneously, the defendants were charged in Delaware County with, inter
alia, conspiracy and PWID. Following their conviction in Montgomery
County, defendants filed motions to dismiss the Delaware County
prosecutions pursuant to section 110. In granting the motion and dismissing
all charges, the trial court reasoned that, because the conspiracy to sell the
drugs occurred in both Delaware and Montgomery Counties, the conspiracy
forming the basis of the Delaware County prosecution “occurred within the
same judicial district” as the prior Montgomery County prosecution. As
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such, the court concluded that the Delaware County prosecution was barred
under section 110. This Court affirmed.
On allowance of appeal, the Supreme Court affirmed in part and
reversed in part. The Court found that, because a “conspiracy” occurs in any
county where an overt act is committed by any of the conspirators in
furtherance of the unlawful venture, the Delaware County court was barred
from prosecuting the defendants for conspiracy. However, with respect to
the possessory charges, the Court found that Delaware County could move
forward with prosecution. Specifically, the Court held that, in amending
section 110(1)(ii),5 “the General Assembly intended to preclude from the
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5
In 2002, the legislature amended section 110(1)(ii). The Fithian Court
provided the following background on that amendment:
[P]rior to 2002, Section 110(1)(ii) required, in relevant part, that
“all charges were within the jurisdiction of a single court.” The
Superior Court consistently interpreted this language as meaning
the charges that required joinder were circumscribed by county
territorial boundaries.
In 1997, our Court had its first opportunity to interpret the
former statutory language. In Commonwealth v. McPhail,
[692 A.2d 139 (Pa. 1997) (plurality)], we considered the
question of whether four drug transactions, three in Washington
County and one in Allegheny County, all constituting a single
criminal episode, were within the “jurisdiction of a single court.”
A plurality of our Court concluded that courts of common pleas
enjoy jurisdiction all over the Commonwealth—that is, the
subject matter jurisdiction of the courts of common pleas is
general and not limited to the territory of the county wherein the
court sits. Our Court reasoned that under Section 110, all
charges were in the “jurisdiction of a single court.” Thus, we
concluded that the Washington County offenses and the
(Footnote Continued Next Page)
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reach of the compulsory joinder statute those current offenses that occurred
wholly outside of the geographic boundaries of the judicial district in which
the former prosecution was brought, even though part of a single criminal
episode.” Id. at 77 (emphasis added).
Here, Kolovich’s offenses against the Wilcoxes in Bradford County
occurred wholly outside the geographic boundaries of Sullivan, Centre and
Luzerne Counties, where he was previously prosecuted for similar offenses.
Accordingly, under Fithian, even if Kolovich could establish that all of his
offenses were part of a single criminal episode, he cannot satisfy the fourth
_______________________
(Footnote Continued)
Allegheny County offenses should have been joined in a single
trial. As a practical matter, the Court’s interpretation in McPhail
led to the “jurisdiction” prong of Section 110(1)(ii) being met in
every case.
In direct response to our Court’s decision in McPhail, the
General Assembly amended Section 110(1)(ii) to its current
language. Specifically, the legislature in paragraph (1)(ii)
substituted the phrase “was within the jurisdiction of a single
court” with “occurred within the same judicial district as the
former prosecution.”
The 2002 amendments, coming as a rejoinder to our Court’s
decision in McPhail, make the legislature’s intent manifest. In
light of this history, it is clear to us that the General Assembly
intended to incorporate, or perhaps re-incorporate, a geographic
component in determining which offenses are precluded because
of a former prosecution. That is, the legislature intended that
the compulsory joinder statute be limited to mandating joinder
only of those offenses occurring in a single judicial district.
Fithian, 961 A.2d at 76–77 (internal citations omitted).
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prong of the compulsory joinder statute. Accordingly, Kolovich’s claim must
fail.6
Kolovich next asserts that the evidence was insufficient to sustain his
convictions.7 Specifically, he alleges that the Commonwealth failed to prove
the intent element of the three offenses of which he was found guilty. For
the following reasons, we disagree.
Kolovich was convicted of deceptive business practices and one count
of receiving stolen property.8 Specifically, Kolovich asserts that the
Commonwealth did not prove the intent element of the crimes, i.e., that
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6
Kolovich’s statement of questions involved also invokes the double
jeopardy clauses of the Pennsylvania and U.S. constitutions; however, he
sets forth no separate constitutional analyses in the argument section of his
brief. Indeed, his section 110 argument is a mere two pages long and
contains minimal analysis. While we address his section 110 claim, we
decline to address his constitutional claims for lack of development. See
Commonwealth v. Perez, 93 A.3d 829, 838 (Pa. 2014) (claims failing to
contain developed argument or citation to supporting authorities and record
are waived).
7
Although Kolovich’s claim is styled as a challenge to the weight of the
evidence, a review of his argument reveals that it is actually a sufficiency
claim. The trial court also treated the claim as one raising sufficiency.
Accordingly, we will address it as such.
8
Kolovich was also convicted of theft by deception and a second count of
deceptive business practices under subsection 4107(a)(2). However, he
presents no argument specific to those convictions and, accordingly, has
waived any challenge to the sufficiency of the evidence supporting them.
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Kolovich knew at the time he took the money from the Wilcoxes that he
would not return it.
A person commits the offense of deceptive business practices if, “in
the course of business, the person: . . . (6) makes or induces others to rely
on a false or misleading written statement for the purpose of obtaining
property or credit[.]” 18 Pa.C.S.A. § 4107(a)(6). A person is guilty of
receiving stolen property if “he intentionally receives, retains, or disposes of
movable property of another knowing that it has been stolen, or believing
that it has probably been stolen, unless the property is received, retained, or
disposed with intent to restore it to the owner.” 18 Pa.C.S.A. § 3925(a).
Here, the Commonwealth presented evidence that Kolovich placed a
newspaper advertisement for the installation of a decking system, which
induced the Wilcoxes to contact him. Kolovich came to the Wilcoxes’ home
and promised to install the deck system within five to seven weeks for a
total cost of $18,000. Kolovich took a downpayment of $9,000 in the form
of a check, which he subsequently deposited. Kolovich did not return within
the promised five to seven week timespan. Mrs. Wilcox attempted to
contact Kolovich seven or eight times before finally reaching him on his cell
phone. When asked for an explanation for the delay, Kolovich told Mrs.
Wilcox that hurricanes in the South had created a materials shortage. When
Mrs. Wilcox asked for the telephone number of Kolovich’s materials supplier,
he refused to give it to her. Mrs. Wilcox spoke to Kolovich or someone in his
office at least three additional times, but they kept “putting us off.” N.T.
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Trial, 8/5/15, at 32. Kolovich visited the Wilcoxes’ home a second time and
“assured [them] that he was going to get to [them] . . . as soon as he could
get materials[.]” Id. at 34. After hearing nothing more, Mrs. Wilcox wrote
Kolovich a letter and requested a refund on her deposit. She sent copies to
his home and business addresses; the letter sent to the business address
was returned unopened. The Wilcoxes never heard anything more from
Kolovich and never received a refund.
Based on the foregoing, we conclude that the evidence adduced at trial
was sufficient to demonstrate the elements of knowledge and intent
necessary to sustain Kolovich’s convictions. See Commonwealth v. Eline,
940 A.2d 421, 433 (Pa. Super. 2007) (intent element of deceptive business
practices established where appellant took deposit and neither began nor
completed installation of pool within time frame agreed upon; appellant also
non-responsive to repeated telephone calls and inquiries by victims;
although appellant did not deliver on promise, appellant refunded no money
when demands made); Commonwealth v. Kelly, 446 A.2d 941, 943 (Pa.
Super. 1982) (necessary mens rea for receiving stolen property may arise
following actual receipt of property; statute, by express terms, makes it
criminal to “retain” stolen property).
Finally, Kolovich claims that the trial court erred in denying him credit
for time served “on related charges that stem from the same sort of conduct
alleged in this case.” Brief of Appellant, at 13. In support of his argument,
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Kolovich cites section 9760 of the Sentencing Code, which provides, in
relevant part, as follows:
(1) Credit against the maximum term and any minimum term
shall be given to the defendant for all time spent in custody as a
result of the criminal charge for which a prison sentence is
imposed or as a result of the conduct on which such a charge is
based. Credit shall include credit for time spent in custody prior
to trial, during trial, pending sentence, and pending the
resolution of an appeal.
42 Pa.C.S.A. § 9760(1) (emphasis added). Kolovich argues that, because
the instant charges are allegedly part of the same criminal episode, the time
he spent in custody in other counties was “a result of the same conduct on
which [this] charge is based” as contemplated by section 9760. Id.
Kolovich cites no authority for his assertion that the words “same
conduct” should be read to mean “offenses forming part of the same criminal
episode.” Accordingly, we find this claim waived for purposes of appellate
review. Perez, supra.
Even if this claim were not waived, Kolovich would be entitled to no
relief. In Commonwealth v. Richard, 150 A.3d 504 (Pa. Super. 2016),
this Court rejected a similar argument. There, the appellant was convicted
of third-degree murder in the death of his wife. On the date he was
scheduled for release from prison on that conviction, he was arrested,
incarcerated and charged with eight counts of terroristic threats in
connection with threats he had made regarding certain witnesses who
testified at his murder trial. He was subsequently charged with additional
counts of terroristic threats and witness intimidation, at two additional
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docket numbers, relating to further threats made against trial witnesses.
After a jury trial on the charges pertaining to all three dockets, appellant
was found guilty of terroristic threats and witness intimidation at the latter
two dockets, and was acquitted of the original eight counts of terroristic
threats.
On appeal, appellant argued that the sentencing court should have
given him credit for time served prior to trial on the eight counts for which
he was acquitted, reasoning that all of the offenses were “inextricably
intertwined.” Id. at 520. This Court rejected that argument, noting that “a
defendant shall be given credit for any days spent in custody prior to the
imposition of sentence, but only if such commitment is on the offense for
which sentence is imposed[.]” Id., quoting Commonwealth v. Clark, 885
A.2d 1030, 1034 (Pa. Super. 2005) (emphasis added). For the same
reasons, here, Kolovich is entitled to no relief.
Judgment of sentence affirmed.
Judge Musmanno joins the Memorandum.
Judge Bowes concurs in the result.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 5/17/2017
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