Com. v. Dinch, 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NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37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
:
v. :
:
:
RICHARD BRUCE DINCH, SR. :
:
Appellant : No. 1871 WDA 2017
Appeal from the Judgment of Sentence December 8, 2017
In the Court of Common Pleas of McKean County Criminal Division at
No(s): CP-42-CR-0000484-2016
BEFORE: BOWES, J., NICHOLS, J., and STRASSBURGER, J.*
MEMORANDUM BY NICHOLS, J.: FILED JULY 18, 2018
Appellant Richard Bruce Dinch, Sr., appeals from the judgment of
sentence entered following his jury trial conviction of theft by unlawful taking
or disposition.1 Appellant asserts that the trial court abused its discretion in
denying his motion to dismiss pursuant to Pa.R.Crim.P. 600 and that the
evidence was insufficient to prove that Appellant had the requisite intent to
deprive Victor Matzner (Victim) of $2,500. We affirm.
The trial court summarized the relevant facts of this matter as follows:
[Victim] testified that he and [Appellant] met at his home [in
September 2014] to discuss the installation of a roof. [Appellant]
initially requested $8,000 for the job and [Victim] indicated “that
was too much.” The two then agreed on $5,000[,] with [half] paid
before and [half] paid after the job was completed. [Victim] sent
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* Retired Senior Judge assigned to the Superior Court.
1 18 Pa.C.S. § 3921(a).
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a certified check to [Appellant] for $2,500. The parties agreed
that [Appellant] would complete the work “as soon as possible.”
[Victim] lived in North Carolina and he left to return there. When
he returned [to Pennsylvania] four months later[,] he discovered
that the work had not been completed. He initially spoke with
[Appellant] over the telephone but that “ceased.” He tried to find
[Appellant by] going to his relatives’ homes but he could not locate
him. The work was never completed. [After the police were
contacted, Pennsylvania State] Trooper Robert Fay made
numerous attempts to locate [Appellant] but was unable to make
contact with him [until June of 2016].
Trial Ct. Op., 2/21/18, at 2 (unpaginated) (citations omitted).
On September 14, 2016, the Commonwealth filed a criminal complaint
against Appellant. On October 22, 2016, Appellant was arrested and
preliminarily arraigned regarding charges of theft by unlawful taking or
disposition and theft by deception.2 On October 27, 2016, Appellant waived
a preliminary hearing, and all of his charges were held over for proceedings
in the Court of Common Pleas. Appellant’s “Last Day to Plea” was scheduled
for December 22, 2016.
Appellant did not enter a plea on December 22, 2016, but requested
that the matter be listed for trial. The trial court listed Appellant’s matter as
a “backup” trial for March 27, 2017, in the event that the primary trial listed
that day could not go forward. The Commonwealth filed a “Motion to Continue
Backup Trial” on February 24, 2017—thirty days prior to the listed trial date—
on the basis that the Commonwealth’s material witness could not appear for
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2 18 Pa.C.S. § 3922(a)(1).
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court on one hour’s notice because he lived in North Carolina. The motion to
continue the backup trial was granted by an order entered March 17, 2017.
A notice indicating trial was scheduled in this matter was filed on May
17, 2017, designating this matter as the “primary” trial on July 24, 2017. On
June 28, 2017—twenty-six days before the listed trial date—the
Commonwealth filed a motion to continue the trial on the basis that the affiant
in the matter was scheduled to be on a pre-paid, out-of-state vacation on the
date of the trial. This motion was granted by an order entered June 29, 2017.
On September 7, 2017, this matter was scheduled as a “backup” trial
for the second day of a three-day case being prosecuted by the Attorney
General from September 25 through September 27, 2017. The Attorney
General’s case proceeded for all three scheduled days, and this matter could
not proceed.
A notice indicating trial was scheduled in this matter was filed on
October 20, 2017, designating this matter as the “primary” trial on November
21, 2017. On November 16, 2017, Appellant filed a motion to continue jury
selection and trial, which was denied by the trial court.
On November 17, 2017, Appellant filed a motion to dismiss the matter
pursuant to Pa.R.Crim.P. 600. On November 20, 2017, the Commonwealth
filed a motion to amend the information to add a count regarding home
improvement fraud. A hearing on the motion to continue jury selection and
trial, the Rule 600 motion, and the motion to amend was held on November
20, 2017. The court denied all three motions that same day.
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We summarize the testimony at the Rule 600 motion hearing below.
Following the hearing, the trial court determined that the period of time after
the filing of the complaint until Appellant was arrested did not count against
the Commonwealth, and that the running of time for purposes of Rule 600
began on October 22, 2016. N.T., 11/20/17, at 57, 60. The trial court also
excluded the time periods when the Commonwealth received its continuances.
Id. at 58.
The matter proceeded to a jury trial on November 21, 2017. Following
the close of the Commonwealth’s case-in-chief, Appellant made an oral motion
for judgment of acquittal on both charges on the basis of insufficient evidence,
asserting that the evidence failed to demonstrate that Appellant had the intent
to permanently deprive Victim of $2,500. See N.T., 11/21/17, at 29.
Following argument on the motion, the trial court denied the motion. Id. at
40. Appellant testified in his defense that he did not return the $2,500 to
Victim and that he had spent the money. Id. at 51.
The jury returned a verdict of guilty of theft by unlawful taking or
disposition and not guilty of theft by deception. Sentencing took place on
December 8, 2017. At the sentencing hearing, Appellant raised an oral motion
for extraordinary relief pursuant to Pa.R.Crim.P. 704(B), requesting that the
trial court set aside the verdict. The motion was denied and Appellant was
sentenced to two to four years’ incarceration.
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Appellant filed a timely notice of appeal and timely court-ordered
concise statement of errors complained of on appeal pursuant to Pa.R.A.P.
1925(b).3 The trial court complied with Pa.R.A.P. 1925(a).
Appellant raises the following questions:
1. Whether the trial court abused its discretion in denying
[Appellant’s] motion to dismiss pursuant to Pa.R.Crim.P. 600?
2. Whether the evidence was insufficient to sustain a finding of
[theft by unlawful taking or disposition], where the
Commonwealth’s evidence was insufficient to prove beyond a
reasonable doubt that [Appellant] had the intent to
permanently deprive Victor Matzner of $2[,]500.
Appellant’s Brief at 7.
Before summarizing Appellant’s argument in support of his first issue,
we state the following as background. At the Rule 600 hearing, the District
Attorney’s office manager, Julie Comes, was asked to justify the span of time
in between the filing of the complaint and the arrest of Appellant. Comes
testified she was “not sure” if the delay was because the police could not find
Appellant, stating that she was “assuming that’s why.” See N.T., 11/20/17,
at 40.
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3 We note that Appellant raised a sufficiency challenge in his Rule 1925(b)
statement, but he failed to specify which element of the crime of theft by
unlawful taking or disposition he intended to challenge. Under some
circumstances, this could result in waiver of the claim. See, e.g.,
Commonwealth v. Garland, 63 A.3d 339, 344 (Pa. Super. 2013). However,
because the trial court “readily apprehended Appellant’s claim and addressed
it” we review this challenge to the sufficiency of the evidence.
Commonwealth v. Laboy, 936 A.2d 1058, 1059 (Pa. 2007).
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Comes also testified about various trial dates. She initially
acknowledged that pursuant to local rules, she was required to provide
defense counsel with thirty days’ notice when scheduling a trial. See id. at 9.
Comes then discussed various criminal jury trial dates during 2017, whether
they were used, and which defendants were prosecuted on each date. See
id. at 10-39.
In pertinent part, during the period between the initial scheduled trial
date of March 27, 2017, and the next scheduled trial date of July 24, 2017,
two dates that had been set aside for trials, March 29, 2017, and June 27,
2017, went unused. Id. at 25, 34-35. Specifically, Comes testified that the
date of March 29, 2017, went unused because both the “primary” trial and
two “backup” trials did not proceed on that date. Id. at 34-35. She similarly
explained that the trial date of June 27, 2017, went unused because that
particular defendant entered a plea four days beforehand. Id. at 25.
During the period between the second scheduled trial date of July 24,
2017, and the next scheduled trial date of September 26, 2017, Comes stated
that only July 31, 2017, went unused as a trial date. Id. at 23. This date
went unused because the defendant had continued the trial three days prior
to trial. Id.
With that background in mind, we summarize Appellant’s arguments in
support of his initial issue. First, Appellant asserts that the trial court
improperly concluded that certain portions of time were properly excludable
under Rule 600. Appellant argues that the period of time from the filing of his
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complaint to the date he was arrested was not excludable because Ms. Comes
testified that she was not sure why Appellant was not arrested sooner and
“the record is devoid of any testimony from the Pennsylvania State Police
Trooper to explain the circumstances of the arrest.” Appellant’s Brief at 18.
Thus, according to Appellant, the Commonwealth failed to carry its burden of
proof regarding due diligence in attempting to arrest Appellant.
Second, Appellant asserts that the Commonwealth failed to exercise due
diligence because it could have requested continuances earlier in the course
of the proceedings, which would have minimized any delay by the
Commonwealth in rescheduling trial.4 Id. at 20-21. Appellant argues that
the Commonwealth could have acted more quickly to schedule trials once the
continuances were granted. Id. at 21. Appellant additionally asserts that
based upon Ms. Comes’ testimony, thirteen jury trial dates during 2017 went
unused up until the date his trial took place. Id. at 23.
We review Rule 600 rulings for an abuse of discretion. Commonwealth
v. Mills, 162 A.3d 323, 325 (Pa. 2017).
The proper scope of review is limited to the evidence on the record
of the Rule [600] evidentiary hearing, and the findings of the
[trial] court. An appellate court must view the facts in the light
most favorable to the prevailing party.
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4According to Appellant, per “an Administrative Order of the Court of Common
Pleas of McKean County, Pennsylvania, dated December 28, 1999, the District
Attorney of McKean County is given nearly exclusive control over what cases
are scheduled for the available trial dates in a given year . . . .” Appellant’s
Brief at 20-21.
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Commonwealth v. Plowden, 157 A.3d 933, 936 (Pa. Super.) (en banc)
(citation omitted), appeal denied, 170 A.3d 1043 (Pa. 2017). When reviewing
trial court rulings, this Court must consider Rule 600’s dual purposes: the
protection of the defendant’s speedy trial rights and the protection of society.
Id.Rule 600 states in relevant part that “[t]rial in a court case in which a
written complaint is filed against the defendant shall commence within 365
days from the date on which the complaint is filed.” Pa.R.Crim.P.
600(A)(2)(a). In computing time, Rule 600 provides that “periods of delay at
any stage of the proceedings caused by the Commonwealth when the
Commonwealth has failed to exercise due diligence shall be included in the
computation of the time within which trial must commence. Any other periods
of delay shall be excluded from the computation.” Pa.R.Crim.P. 600(C)(1).
More specifically, “[e]xcludable time includes delay caused by the defendant
or his lawyer. Concomitantly, excusable delay occurs where the delay is
caused by circumstances beyond the Commonwealth’s control and despite its
due diligence.” Commonwealth v. Roles, 116 A.3d 122, 125 (Pa. Super.
2015) (citations and internal quotation marks omitted). The Commonwealth
bears the burden of proving by a preponderance of the evidence that it
exercised due diligence. Plowden, 157 A.3d at 941.
“The starting point for calculating delay for Rule 600 purposes is the
date of filing of the criminal complaint . . . .” Commonwealth v. Miskovitch,
64 A.3d 672, 678 (Pa. Super. 2013).
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[T]he courts of this Commonwealth employ three steps . . . in
determining whether Rule 600 requires dismissal of charges
against a defendant. First, Rule 600(A) provides the mechanical
run date. Second, we determine whether any excludable time
exists pursuant to Rule 600(C). We add the amount of excludable
time, if any, to the mechanical run date to arrive at an adjusted
run date.
Commonwealth v. Wendel, 165 A.3d 952, 956 (Pa. Super. 2017) (citation
omitted).
The time between the filing of the complaint and the arrest of a
defendant is excludable where “the defendant could not be apprehended
because his or her whereabouts were unknown and could not be determined
by due diligence.” Pa.R.Crim.P. 600(C)(1). Additionally, when calculating
time for purposes of Rule 600, a trial court may excuse time attributable to
the unavailability of a witness because “[t]he Commonwealth cannot be held
to be acting without due diligence when a witness becomes unavailable due
to circumstances beyond its control.” Wendel, 165 A.3d at 957 (citation
omitted) (holding that a police officer’s unavailability was a circumstance
beyond the Commonwealth’s control, and the Commonwealth was not acting
without due diligence in postponing trial); see also Commonwealth v. Hunt,
858 A.2d 1234, 1243 (Pa. Super. 2004) (en banc) (finding that victim’s
unavailability due to absence from the country was a circumstance beyond the
Commonwealth’s control).
We first address whether the thirty-eight-day period between the filing
of the complaint and the arrest was excludable time. The record does not
address whether Appellant “could not be apprehended because his []
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whereabouts were unknown and could not be determined by due diligence.”
Miskovitch, 64 A.3d at 678. As set forth above, the only testimony on this
subject was Ms. Comes’ testimony, in which she indicated that she “assumed”
Appellant could not be found. N.T., 11/20/17, at 40. The Commonwealth has
not identified any other testimony to demonstrate that it acted with due
diligence during the period between the filing of the complaint and Appellant’s
arrest. Accordingly, we do not consider this time to be excludable. Therefore,
the 365-day run date was one year from the date the complaint was filed, or
September 14, 2017.
We next address whether the periods of time attributable to the
Commonwealth’s continuances were excusable. The first continuance was
granted because Victim, a key witness, resided in North Carolina and was
unavailable on short notice should this matter be called as a “backup” trial.
See Hunt, 858 A.2d at 1243. The second Commonwealth continuance was
granted because the affiant was unavailable due to a planned pre-paid
vacation. See Wendel, 165 A.3d at 957. We discern no abuse of discretion
by the trial court, and conclude that portions of time based on these
continuances were properly excusable.5 See Plowden, 157 A.3d at 936.
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5 Neither the parties nor the court calculated the length of excusable time
associated with the continuances. We note that the maximum period of time
attributable to the first continuance was 119 days from March 27, 2017,
through the second scheduled trial date of July 24, 2017 (first continuance
period). The maximum period of time attributable to the second continuance
was 64 days from July 24, 2017, through the third scheduled trial date of
September 26, 2017 (second continuance period).
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With respect to Appellant’s second argument—that the Commonwealth
failed to exercise due diligence—we similarly perceive no trial court error. Per
Comes’ testimony, all trial dates except three were used during those periods
of time. See N.T., 11/20/17, at 10-39. With respect to those three remaining
trial dates, one trial date initially had three other trials scheduled to take place
that day and the remaining two trial dates involved a defendant either taking
a plea or continuing the case immediately beforehand. See id. at 23, 25, 34-
35.
The Commonwealth also provided ample time prior to the scheduled trial
dates when it filed its continuances. In the first continuance, the
Commonwealth filed its motion on February 24, 2017, which was thirty days
before the trial scheduled for March 27, 2017. In the second continuance, the
Commonwealth filed its motion on June 28, 2017, which was twenty-six days
prior to the trial scheduled for July 24, 2017. Accordingly, we agree with the
trial court that the timing of the filing of the Commonwealth’s requests for
continuances demonstrates due diligence. See Plowden, 157 A.3d at 941.
However, Appellant’s assertion that the Commonwealth could have
acted more quickly to schedule trials once the continuances were granted has
merit. The record shows that following the date of the first scheduled trial of
March 27, 2017, the Commonwealth did not schedule a new trial date until
May 17, 2017. The record does not reveal a reason for this fifty-one-day delay
in scheduling. See id. (stating that the Commonwealth bears the burden of
proof that it exercised due diligence). Likewise, following the second
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scheduled trial date of July 24, 2017, the Commonwealth did not schedule the
third trial date until September 7, 2017, and the record does not indicate how
the Commonwealth exercised due diligence during this forty-five day delay.
See id. Accordingly, because the record does not substantiate the
Commonwealth’s position that it exercised due diligence in this regard, the
trial court erred in finding otherwise.
Thus, from the first continuance period of 119 days, fifty-one days must
be subtracted for lack of due diligence, resulting in an excusable delay of sixty-
eight days. From the second continuance period of sixty-four days, forty-five
days must be subtracted for lack of due diligence. Additionally, twelve days
at the end of the second continuance period were after the run date of
September 14, 2017, and must be subtracted. Thus, the second continuance
period yielded seven days of excusable time. Together, the continuance
periods resulted in seventy-five days of excusable time.
As noted above, the trial in this matter began on November 21, 2017,
sixty-eight days after the run date of September 14, 2017. Therefore,
because the continuance periods resulted in seventy-five days of excusable
time, the Commonwealth ultimately did not violate Rule 600. See Wendel,
165 A.3d at 956 (noting that we add the amount of excludable time to the
mechanical run date to arrive at an adjusted run date). We therefore affirm
the trial court’s denial of Appellant’s Rule 600 motion, albeit on different
grounds. See In re Jacobs, 15 A.3d 509 n.1 (Pa. Super. 2011).
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In support of his next issue, Appellant asserts that the evidence was
insufficient to convict him of theft by unlawful taking or disposition because
the Commonwealth failed to prove Appellant had the intent to deprive Victim
of $2,500 permanently. Appellant’s Brief at 26. Appellant argues that this
matter is “about a contractual arrangement between [Appellant] and
[Victim].” Id. at 27. Appellant further asserts that “he intended to perform
the work but was unable to do so due to illness and surgeries.” Id. at 28.
Our standard of review for sufficiency claims is as follows:
The standard we apply in reviewing the sufficiency of the evidence
is whether viewing all the evidence admitted at trial in the light
most favorable to the verdict winner, there is sufficient evidence
to enable the fact-finder to find every element of the crime beyond
a reasonable doubt. In applying the above test, we may not weigh
the evidence and substitute our judgment for the fact-finder. In
addition, we note that the facts and circumstances established by
the Commonwealth need not preclude every possibility of
innocence. Any doubts regarding a defendant’s guilt may be
resolved by the fact-finder unless the evidence is so weak and
inconclusive that as a matter of law no probability of fact may be
drawn from the combined circumstances. The Commonwealth
may sustain its burden of proving every element of the crime
beyond a reasonable doubt by means of wholly circumstantial
evidence. Moreover, in applying the above test, the entire record
must be evaluated and all evidence actually received must be
considered. Finally, the trier of fact while passing upon the
credibility of witnesses and the weight of the evidence produced,
is free to believe all, part or none of the evidence.
Commonwealth v. Tucker, 143 A.3d 955, 964 (Pa. Super. 2016) (brackets
and citation omitted).
To sustain a conviction for theft by unlawful taking or disposition, the
Commonwealth must prove that a person has “take[n], or exercise[d]
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unlawful control over, movable property of another with intent to deprive him
thereof.” 18 Pa.C.S. § 3921(a).
The Commonwealth may prove the intent necessary for theft by
unlawful taking or disposition “either by showing an intent to withhold
property of another permanently or by showing an intent to dispose of the
property so as to make it unlikely that the owner will recover it.”
Commonwealth v. Goins, 867 A.2d 526, 530 (Pa. Super. 2004) (internal
quotation marks, brackets, and citation omitted). The Commonwealth may
establish intent with circumstantial evidence. Commonwealth v. Haines,
442 A.2d 757, 759 (Pa. Super. 1982).
In challenging whether the Commonwealth presented sufficient
evidence of intent, Appellant relies on Commonwealth v. Gallo, 373 A.2d
1109 (Pa. 1977). In Gallo, the defendant contacted a contractor and offered
to create a brochure in exchange for advertising fees that would promote the
contractor’s business and would contain advertisements for the contractor’s
subcontractors and suppliers. Id. at 1110. Gallo provided his address and
phone number, and when the brochure was not completed, the contractor
attempted to contact Gallo at the number and address provided. Id. The
Pennsylvania Supreme Court noted that “if [Gallo’s] conviction for theft by
deception is to be sustained, it must be because [he] never intended to
perform his part of the contract . . . .” Id. The theft by deception statute
states that “deception as to a person’s intention to perform a promise shall
not be inferred from the fact alone that he did not subsequently perform the
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promise.” 18 Pa.C.S. § 3922(a)(1). The Court indicated that the record did
not show any evidence of Gallo’s intent except his failure to perform. Gallo,
373 A.2d at 1111. Indeed, the Court held that by providing his correct contact
information, Gallo showed the lack of an intention to deceive. Id. Thus, the
Court reversed Gallo’s conviction of theft by deception.
Gallo is distinguishable from the instant matter because it deals with
theft by deception rather than theft by unlawful taking or disposition. The
theft by deception statutory provision specifically states that “deception as to
a person’s intention to perform a promise shall not be inferred from the fact
alone that he did not subsequently perform the promise.” 18 Pa.C.S. §
3922(a)(1). This proviso is not part of the theft by unlawful taking or
disposition statutory provision. Furthermore, in Gallo, the Supreme Court
found the lack of an intention to deceive, which is not an element of theft by
unlawful taking or disposition. Thus, the analysis in Gallo is inapposite to the
instant matter.
Here, Appellant’s intent can be inferred because he testified that he kept
the money and admitted to spending it. See N.T., 11/21/17, at 51.
Furthermore, even after multiple attempts by both Victim and the State Police
to contact Appellant, he could not be contacted until over one year and nine
months after Victim gave the $2,500 to Appellant. Appellant’s disposal of the
$2,500 by spending it made it unlikely that Victim would recover the money.
See Goins, 867 A.2d at 530. Altogether, the circumstances permit
Appellant’s criminal intent to be inferred. See Haines, 442 A.2d at 759. As
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to Appellant’s argument that this was a contractual obligation that he could
not perform due to health reasons, it was for the jury to weigh the credibility
of Appellant’s testimony. Thus, the Commonwealth presented sufficient
evidence to sustain Appellant’s conviction of theft by unlawful taking or
disposition. See Tucker, 143 A.3d at 964.
Judgment of sentence affirmed.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 7/18/2018
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