Com. v. Chambers, L.

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NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
COMMONWEALTH OF PENNSYLVANIA : IN THE SUPERIOR COURT OF
: PENNSYLVANIA
:
v. :
:
:
LEONARD CHAMBERS :
:
Appellant : No. 424 EDA 2021
Appeal from the Judgment of Sentence Entered January 27, 2021
In the Court of Common Pleas of Philadelphia County Criminal Division at
No(s): CP-51-CR-0009387-2019
BEFORE: DUBOW, J., McLAUGHLIN, J., and KING, J.
MEMORANDUM BY McLAUGHLIN, J.: FILED SEPTEMBER 27, 2022
Leonard Chambers appeals from the judgment of sentence entered after
his bench trial convictions for theft by deception and three counts of home
improvement fraud.1 He raises claims of double jeopardy and due process
violations and alleges two of his convictions should have merged for
sentencing purposes. We affirm.
In September 2019, Chambers was charged by criminal complaint with
four counts: theft by unlawful taking,2 theft by deception, theft by receiving
stolen property,3 and home improvement fraud. Home improvement fraud can
be committed in several ways, only three of which are relevant here. These
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1 18 Pa.C.S.A. § 3922(a) and 73 P.S. §§ 517.8(a)(1), (a)(2), and (a)(3).
2 18 Pa.C.S.A. § 3921(a)(1).
3 18 Pa.C.S.A. § 3925(a).
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three are, in very general terms, the making of false and misleading
statements, the receipt of advance payment without performing, and the
misrepresentation or concealment of certain information:
(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:
(1) makes a false or misleading statement to induce,
encourage or solicit a person to enter into any written or
oral agreement for home improvement services or
provision of home improvement materials or to justify an
increase in the previously agreed upon price;
(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; [or]
(3) while soliciting a person to enter into an agreement for
home improvement services or materials, misrepresents
or conceals the contractor’s or salesperson’s real name,
the name of the contractor’s business, the contractor’s
business address or any other identifying information[.]
73 P.S. §§ 517.8(a)(1), (a)(2), & (a)(3).
The criminal complaint was based on allegations that Chambers
fraudulently induced LaShelle Thompson to enter into two separate contracts
for home improvement services and to pay Chambers $975 for work he did
not perform. Relevant to the charge of home improvement fraud, the
complaint asserted that Chambers had committed home improvement fraud
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in three ways: by making false and misleading statements, receiving advance
payment and failing to perform, and misrepresenting or concealing his real
name, the name of his business, or other identifying information. See Criminal
Complaint, filed 9/13/19, at 2 (unpaginated).
The Commonwealth followed up in December 2019 by filing an
information (“Information”), again charging theft by unlawful taking, theft by
deception, theft by receiving stolen property, and home improvement fraud.
The Information gave the statutory citation for the home improvement fraud
count as 73 P.S. § 517.8(a)(1) (making false and misleading statements).
However, the Information used language relevant to both that subsection and
subsection (a)(2) (receiving advance payment and failing to perform).
The Commonwealth later moved to amend the Information to more
explicitly allege violations of subsections (a)(1), (a)(2), and (a)(3). The
motion stated, “To the extent the bill of information is unclear, the
Commonwealth, consistent with the criminal complaint, moves to correct
and/or amend the bill of information to clarify that the defendant is charged
with violating 73 P.S. § 517.8(a)(1), (2), and (3).” Motion to Amend/Correct
Bills of Information, filed Mar. 16, 2020.
On the day of trial, immediately before the trial started, the
Commonwealth obtained a ruling on its motion to amend the Information.
Defense counsel said he had “no objection,” and the court granted the
amendment:
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[The Commonwealth]: Your Honor, there is one thing I just
want to put on the record, and I just am clarifying that count
four is a home improvement fraud, the Commonwealth
subsection A.1., the language -- the bill actually refers to
subsection one, two and three, we are proceeding under
subsection A.1, 2 and three of Title 73 75172.8 [sic], and,
in addition, Your Honor, the date of the Bills of Information
is April 8th. I also am moving to amend it to April the 6th
and 8th?
[Defense counsel]: No objection, Your Honor.
THE COURT: The motion is granted.
N.T., Jan. 27, 2021, at 12.
The court then conducted a stipulated trial. Afterward, the trial court
said it was finding “Chambers guilty of theft by deception, false statement to
induce home improvement services. As to the remaining charges, the Court
finds [Chambers] not guilty.” N.T. at 39. Minutes later, however, the court
explained its verdict and made findings of fact supporting guilty verdicts for
all three of types of home improvement fraud charged:
Mr. Chambers had a written contract with Ms. Thompson to
install carpets in multiple rooms for $800 and another for
$175. It was a valid contract. Per Ms. Thompson’s
testimony, the work was to be done within the two to three
day period. Which never happened. Ms. Thompson relied on
the fact that Mr. Chambers had a valid contracting company
and was a bona fide contractor. A Clear Search showed that
there was no such business or company registered as
Perfect Home Improvement Company which is an indication
of intent to engage in a fraud. Also, Ms. Thompson was
given a false business address by Mr. Chambers. And the
check was cashed by [Chambers] that Ms. Thompson gave
to him. [Chambers] did not start the job in a reasonable
time. When Ms. Thompson called and texte[d] Mr.
Chambers to ask him to do the job, he promised to do it but
never followed up. [Chambers] never gave money back to
Ms. Thompson in fact he never offered to give money back
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which is evidence of intent to commit fraud. There was no
proof that Mr. Chambers used any portion of the money that
Ms. Thompson gave him to buy supplies, the carpets or
materials, and this evidence also shows intent to commit a
fraud. After more than two months of inaction on the part
of Mr. Chambers, [Ms.] Thompson called the police, at that
point an arrest was made.
Based upon the totality of the circumstances, there was
more than mere nonperformance indicated to show Mr.
Chambers inten[ded] to defraud Ms. Thompson. . . .
[Chambers] intentionally withheld Ms. Thompson’s money
and created a false impression that he intended to install
carpets at her house. Simply put, he took Ms. Thompson’s
money, did not do the job within a reasonable time and
repeatedly broke promises to do the job over the course of
two months. [Chambers] did not offer to give the
complainant her money back, also there was no legitimate
excuse for failing to do the job, nor was there any evidence
that he had purchased any materials for the job.
Id. at 39-41.
The case proceeded immediately to sentencing. When imposing
sentence, the court stated the “sentence is going to be 11 and a half to 23
months, to run concurrently on the three charges. A one[-]year probationary
tail on the felony charge, consecutive to the jail portion of the sentence.” Id.
at 54-55.
That very day, the court entered a written sentencing order. Although
the court had said it was imposing sentence on three charges, the written
order was for four charges. It imposed four identical, concurrent sentences of
11½ to 23 months in jail followed by one year of probation. Relevant to this
appeal, the headings for the counts listed convictions for theft by deception
and all three types of home improvement fraud charged:
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• “18 § 3922 §§ A1 - Theft by Decep-False impression”
• “73 § 517.8 §§ A1 – False Stmt to Induce Agreement for Home
Improvement Services”
• “73 § 517.8 §§ A2 – Receives Advance Payment For Services
and Fails to Perform”
• “73 § 517.8 §§ A3 – Misrepresents or Conceals Contractor
Identifying Information”
Order, entered 1/27/21, at 1-2 (unpaginated).
Chambers appealed and raises the following issues:
1. Was not the appellant subjected to a violation of his state
and federal rights against double jeopardy when he was
informed in open court that he had been convicted of two
offenses and promptly received two sentences on those
charges, only to learn weeks later that following the
adjournment the judge had recorded four guilty verdicts
plus sentences on the four verdicts, thereby increasing the
punishment he had received?
2. Did not the trial court violate appellant’s right to counsel
and due process of law by entering additional convictions
and sentences on the docket for which he had never been
charged in the absence of both the defendant and his
attorney?
3. Did not the trial court violate appellant’s state and federal
rights against double jeopardy by imposing multiple
convictions and punishments for his singular culpability of
violating the home improvement fraud statute, which by its
terms establishes a single offense subject to multiple forms
of proof and/or enhancements?
4. Should not the sentence imposed on theft by deception
have merged with any sentence imposed on the offense of
home improvement fraud enhanced as a felony based on
the age of the victim?
Chambers’ Br. at 3.
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We will address Chambers’ first two issues together. Chambers
maintains he did not know that he had received four separate sentences until
after he filed an appeal and “learned that four separate sentences had been
recorded on an expanded docket and on the ‘Order of Sentence’ prepared in
[his] absence following the adjournment of his trial and sentencing hearing.”
Id. at 10. He points out that at trial the court referenced the language of only
one subsection of the home improvement fraud statute when stating the
verdict and found him not guilty of “the remaining charges.” Id. He argues
the court impermissibly increased the number of convictions and sentences
after the trial adjourned, and he had a “legitimate expectation of the finality
of his sentence and his verdicts of acquittal and conviction.” Id. He maintains
this was a double jeopardy violation. He further contends the court violated
his due process rights by entering verdicts on two counts that had not
previously existed.
The trial court explains in its Pa.R.A.P. 1925(a) opinion that it intended
what it wrote in the sentencing order, not what it said on the record at trial.
It states that its explanation of its verdict “made it abundantly clear that
[Chambers] was guilty of § 517.8(a)(1), (2) and (3).” Trial Court Opinion,
filed June 25, 2021, at 8.
Chambers’ arguments stress the conflict between the court’s on-the-
record statements about the verdict and sentence with the terms of its
sentencing order. When a court’s oral statements conflict with a written
sentencing order, there is a rebuttable presumption that the written order
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controls. See Commonwealth v. Kremer, 206 A.3d 543, 548 (Pa.Super.
2019).
Chambers highlights the inconsistency between the court’s oral
statements and the sentencing order. However, he does not attempt to rebut
the presumption that the written sentencing order controlled. Moreover, even
if we were to examine the court’s oral statements alone, we think the record
establishes that the court intended to find Chambers guilty of three counts of
home improvement fraud, and the court therefore properly sentenced on all
three counts.
Chambers’ arguments train on the court’s announcement of the verdict
in isolation. But when we look at that statement in context – taking into
account the court’s on-the-record findings in support of the verdict within
minutes of the disputed statement, and its sentencing order issued that same
day – the record paints a different picture. The court’s findings follow the
relevant statutory language closely and evince an intent to convict under each
subsection. The court’s findings set forth that the complainant relied on
Chambers’ purportedly valid contracting company to enter into the contract,
which corresponds to subsection (a)(1); that Chambers misrepresented
himself as a bona fide company and gave a false business address, which
corresponds to subsection (a)(3); and that Chambers cashed the
complainant’s checks without performing in a reasonable time, which
corresponds to subsection (a)(2). As for the sentencing order, the fact that
the court issued it shortly after the verdict is strong evidence that the court
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meant to find Chambers guilty of all three subsections charged but misspoke
on the record. Had the court imposed sentence weeks or months later, we
might reach a different conclusion.
Accordingly, this is not a situation where the court altered its verdict
after its entry. Rather, when the record is viewed as a whole, it is clear the
trial court intended to find Chambers guilty of three subsections of the home
improvement fraud statute. Because the court found him guilty of three home
improvement fraud counts, in addition to one count of theft by deception, it
properly sentenced him for four separate convictions. Chambers’ double
jeopardy and due process claims lack merit.
In his third issue, Chambers argues that the home improvement fraud
statute defines a single offense, and the various subsections represent
alternate means of proving the offense or of determining the grading. He
contends that the multiple convictions and sentences here violated double
jeopardy. He argues the statute stated that a person commits “the offense,”
in the singular form, and provides alternate methods of proving the
commission of that singular offense.
This claim also fails. The case on which Chambers relies –
Commonwealth v. Given, 244 A.3d 508 (Pa.Super. 2020) – is inapposite.
There, we concluded that “a defendant should not be subject to separate
sentences for multiple convictions under 75 Pa.C.S.[A.] § 3802(d)(1), where
the defendant committed a single act of driving while his blood contained a
parent compound and a metabolite of the same controlled substance.” Id. at
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510 (emphasis omitted). We reasoned that a defendant should not be subject
to more than one sentence for a single criminal act—driving after using
marijuana—that results in multiple convictions under the same subsection of
the DUI statute. Id.
Here, Chambers’ multiple convictions and sentences were based on
findings he committed different acts, pursuant to different subsections of the
statute. He was convicted of making false and misleading statements,
pursuant to subsection (a)(1); receiving advance payment without
performing, pursuant to subsection (a)(2); and misrepresenting or concealing
certain information, pursuant to subsection (a)(3). The Given court’s concern
about a defendant being subject to multiple convictions based on different
forms of proof for a single criminal act does not arise here.
The Commonwealth thus did not use the same proof to establish the
convictions under the separate subsections. Rather, each subsection contains
different elements and the Commonwealth established guilt of each with
different evidence. There was no double jeopardy violation. See
Commonwealth v. Talley, 236 A.3d 42, 52-54 (Pa.Super. 2020) (holding
conviction for stalking under 18 Pa.C.S.A. §§ 2709.1(a)(1)4 and (a)(2) did not
merge for sentencing purposes because they did not arise from a single
criminal act and all elements of the subsection are not included in the other),
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4 The stalking statute also uses the singular “the crime” when defining the
offense. 18 Pa.C.S.A. § 2709.1(a).
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affirmed, 265 A.3d 485 (Pa. 2021);5 Commonwealth v. Rhoades, 8 A.3d
912, 918 (Pa.Super. 2010) (holding because two aggravated assault
subsections – 18 Pa.C.S.A. §§ 2702(a)(1) and (a)(4) – contain different
elements, it was not error to find that the convictions did not merge for
sentencing purposes).
In his fourth issue, Chambers claims the theft by deception conviction
should have merged with the home improvement fraud false statement
conviction for sentencing purposes. He argues the crimes included the same
elements and that theft by deception is a lesser-included offense to the crime
of home improvement fraud false statement.
The court convicted Chambers of theft by deception under Subsection
3922(a)(1) of the Crimes Code. Under that subsection, the Commonwealth
must prove that the defendant “intentionally obtain[ed] or with[e]ld[]
property of another” by “intentionally . . . creat[ing] or reinforc[ing] a false
impression, including false impressions as to law, value, intention or other
state of mind[.]” 18 Pa.C.S.A. § 3922(a)(1).
The trial court also convicted Chambers of home improvement fraud
under Subsection 517.8(a)(1). Under that subsection, the Commonwealth
must prove that the defendant, “with intent to defraud or injure anyone,”
“ma[de] a false or misleading statement to induce, encourage or solicit a
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5 The appellant in the Supreme Court’s decision was the defendant, and he
did not challenge this court’s disposition of his sentencing claim. See Talley,
265 A.3d at 505 n.7.
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person to enter into any written or oral agreement for home improvement
services[.]” 73 P.S. § 517.8(a)(1).
Merger only occurs if two distinct circumstances are present: 1) the
crimes arise from a single criminal act, and 2) all the statutory elements of
one of the offenses are included in the statutory elements of the other. 42
Pa.C.S.A. § 9765. When determining whether the crimes arose from a single
act, we examine the Commonwealth’s charging documents. Commonwealth
v. Martinez, 153 A.3d 1025, 1031 (Pa.Super. 2016).
The trial court explained that the Information listed different dates of
commission of each crime. The Commonwealth averred that Chambers
committed home improvement fraud on April 6 and April 8, 2019, and theft
by deception on April 8, 2019. See Trial Ct. Op. at 10-11; Criminal
Information, filed 12/24/19, at 1 (charging Chambers with, inter alia, theft by
deception “on or about: 04/08/2019”); N.T. at 12 (granting Commonwealth’s
motion to amend information to reflect commission of home improvement
fraud on April 6 and 8, 2019). Thus, the two convictions arise from different
criminal acts and do not merge. Moreover, the statutes that define each
conviction contain an element that the other lacks. Theft by deception requires
that the defendant obtain or withhold the property of another while home
improvement fraud has no such requirement. Similarly, home improvement
fraud requires misrepresentation to induce the victim to enter a contract for
home improvement services while theft by deception includes no such
requirement. Compare 18 Pa.C.S.A. § 3922(a)(1) with 73 P.S. §
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517.8(a)(1). Accordingly, the offenses do not merge for purposes of
sentencing.
Because the charges did not arise from a single criminal act and neither
offense encompasses all the statutory elements of the other, the trial court
properly declined to merge for sentencing purposes Chamber’s conviction for
theft by deception and home improvement fraud false statement.
Judgment of sentence affirmed.
Judge King joins the memorandum.
Judge Dubow files a dissenting memorandum.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 9/27/2022
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