Commonwealth v. McCarthy

J-S48026-17
2018 PA Super 22COMMONWEALTH OF PENNSYLVANIA : IN THE SUPERIOR COURT OF
: PENNSYLVANIA
:
v. :
:
:
TODD FRANKLIN MCCARTHY :
:
Appellant : No. 345 MDA 2017
Appeal from the Judgment of Sentence October 21, 2016
In the Court of Common Pleas of York County
Criminal Division at No(s): CP-67-CR-0002433-2015
BEFORE: OTT, J., STABILE, J., and PLATT, J.
OPINION BY OTT, J.: FILED FEBRUARY 06, 2018
Todd Franklin McCarthy appeals from the judgment of sentence imposed
on October 21, 2016, in the Court of Common Pleas of York County, following
his jury convictions for theft by unlawful taking, access device fraud, and two
counts of forgery.1 The trial court sentenced McCarthy to, inter alia, an
aggregate term of 18 to 36 months’ imprisonment (with 383 days’ credit for
time served), followed by 10 years’ probation.2 In this appeal, McCarthy
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 Retired Senior Judge assigned to the Superior Court.
1 18 Pa.C.S. §§ 3921(a), 4106(a)(1)(ii), and 4101(a)(2), and (3),
respectively.
2 The trial court sentenced McCarthy to 18 to 36 months in prison with 383
days’ credit for time served for his conviction for theft by unlawful taking. The
trial court imposed consecutive five-year sentences of probation for access
device fraud and forgery, respectively. On the second count of forgery, the
trial court imposed a concurrent sentence of five years’ probation. Finally, the
trial court ordered McCarthy to pay $90,000.00 in restitution to the estate of
his mother, the victim.
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challenges the trial court’s denial of his motion to dismiss, the trial court’s
evidentiary ruling that allowed evidence regarding the value and condition of
the victim’s home, and the discretionary aspects of the sentence. Based upon
the following, we affirm.
The criminal charges against McCarthy arose from McCarthy’s actions of
having his elderly mother, Mary Ann Miller (the “victim”),3 sign blank checks
that he made payable to himself, and obtaining money through ATM
transactions using his mother’s debit card. At the relevant time, McCarthy
was his mother’s agent under her power of attorney (POA). McCarthy was
charged via a criminal complaint with the foregoing crimes on February 26,
2015. McCarthy was arrested on March 2, 2015, pursuant to a warrant issued
on February 27, 2015. On August 10, 2015, at McCarthy’s request, the trial
court continued the case to October 16, 2015. On October 14, 2015, again at
McCarthy’s request, the trial court continued the case to December 7, 2015.
On December 7, 2015, the parties agreed to list the case for the January 2016
term, which was to start on January 5, 2016, because the criminal court was
not in session between December 7, 2015, and January 5, 2016. McCarthy
was not tried in January 2016. The parties next appeared in court on July 25,
2016.4 On that date, the trial court continued the case to the September 2016
____________________________________________
3 Suffering from dementia, the victim passed away in March 2015.
4 In the interim, and unrelated to the disposition of this case, the
Commonwealth’s only activity on the docket involved its filing of a motion in
limine on June 14, 2016.
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term. In so doing, the trial court noted that “[g]iven the amount of time that
the parties anticipate is required to resolve this case to complete the trial and
the [c]ourt’s schedule, which only has available court time today and
tomorrow, we will continue this case and put it back on the September trial
term[.]” Trial Court Order, 7/25/16. On September 6, 2016, on the first day
of the September 2016 term, the trial court granted the Commonwealth’s
request to move McCarthy’s trial to the following week.
On September 9, 2016, McCarthy filed a Pa.R.Crim.P. 600 motion,
seeking to dismiss with prejudice the charges filed against him. McCarthy
argued that the Commonwealth failed to bring him to trial within 365 days of
the filing of the criminal complaint. The trial court held a jury trial on
September 12, 2016, which lasted two days. At the start of trial, the trial
court held a hearing on McCarthy’s Rule 600 motion. N.T. Trial, 9/12/16, at
4-5, 14-29. Following the hearing, the trial court denied the motion.
McCarthy proceeded to trial, at which he objected, on the basis of relevance,
to the Commonwealth’s introduction of evidence relating to the value and
condition of the victim’s house while McCarthy was in charge of her care. The
Commonwealth argued that it should be permitted to introduce such evidence
for the following reasons:
[T]he Commonwealth’s case is just to show that the, in terms of
the house, that the—that after the, [the victim] in this case had
moved out of the house and then ultimately became deceased,
and [McCarthy] was the only one living there, that he did nothing
except allow it to go to waste. He was not taking care of anything.
He allowed the property to go to tax sale. He allowed it to fall into
ruin. That at that point it was sold, it was sold for much less than
the value, the assessed value of the house.
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There are pictures, which I can hand up, showing the
condition of the house. And it just goes to the overall
circumstances. This is basically a circumstantial case, that
[McCarthy] was wasting [the victim’s] assets for his own benefit
and doing nothing to take care of them, and that that, in turn,
affected not only [the victim], but the rest of the heirs of the
property.
N.T. Trial, 9/12/16, at 33-34. The trial court overruled McCarthy’s objection.
At trial, the Commonwealth introduced the testimony of several witnesses,
which the trial court summarized as follows:
During trial, Angie Walker[,] a social worker with Visiting
Angels, testified that her agency provided personal care for [the
victim], [McCarthy’s] elderly mother, in her home. Because [the
victim] had been diagnosed with dementia, Walker regularly
assessed her mental health status. Tests conducted in late 2012
and early 2013, as well as visual observations, established that
[the victim’s] mental status was deteriorating rapidly and she
could no longer manage her financial affairs.
In April 2013, Walker told [McCarthy] that [the victim] could
no longer properly administer her medication. [McCarthy] was
considering placing his mother in a residential facility. However,
when he learned that the cost would not be covered by insurance,
[McCarthy] decided against the private facility.
Barbara Kelch, a Visiting Angels worker, cared for [the
victim] beginning in 2011. [The victim’s] mental and physical
health declined during this period. [McCarthy] lived in [the
victim’s] residence beginning in 2013. Initially [Mccarthy] would
ask [the victim] for her bankcard to pay for household necessities
and return it to her. Later, however, [McCarthy] controlled [the
victim’s] finances. [The victim] occasionally complained that
“[h]e’s spending my money.” [McCarthy] frequently left [the
victim] alone and took her car to travel to the White Rose Bar and
Grill. [McCarthy] did not perform household tasks.
Susan Heinle, president of Visiting Angels, testified that [the
vicitm’s] daughter had had power of attorney and made regular
payments to Visiting Angels. When [McCarthy] assumed
responsibility for [the victim’s] finances, the “payments were
sporadic” and often weeks late. Visiting Angels “would have to
send repetitive notices, and . . . threaten that we were going to
put services on hold unless we received payment.” When Visiting
Angels stopped services, the business “repeatedly tried to get
payment for that final balance, without success.” In addition, real
estate taxes on [the victim’s] residence were “delinquent.”
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Megan Schrom, administrator at Rest Haven Nursing Home,
testified that [the victim] began residing at the home in February
2014. Although [McCarthy] had told staff members that “there
were adequate funds, money was not an issue,” he failed to pay
bills. Despite repeated attempts to communicate with [McCarthy],
close to $60,000 in charges from Rest Haven remained unpaid.
Eventually, Rest Haven executives took the unusual step of
visiting [the victim’s] residence. However, [McCarthy] refused to
answer the door. Schrom noticed that the exterior of the
residence and surrounding area were “really disgusting” and
“there were multiple notices on the door.” In addition, the
physical condition of the residence was “dingy, dirty” and it
“[l]ooked like it was going to fall down.” Prior to [McCarthy’s]
residence, the home had been well-maintained.
Despite receiving no payment, Rest Haven continued to care
for [the victim] until she died in March 2015. Rest Haven officials
contacted the Area Agency on Aging Protective Services with their
concerns.
Other than when [the victim] was first admitted to Rest
Haven in February 2014, Schrom knew of no contact between
[McCarthy] and [the victim] before her death more than a year
later. Rest Haven could not reach [McCarthy] to fill out routine
forms and [McCarthy] failed to attend meetings with staff to
discuss [the victim’s] care.
Sue Gordon, a protective service investigator with the Office
on Aging, testified she became involved in [the victim’s] case
because “[b]ack taxes hadn’t been paid on her home . . . there
were unpaid bills to the nursing home, to in-home care services .
. . and nobody was able to get ahold of [McCarthy].” Gordon
identified documents that established [McCarthy] had power of
attorney over his mother’s affairs. Under a power of attorney,
“you are supposed to keep your funds separate from the client’s
and manage those monies just in the best interest of the client.”
As a fiduciary, [McCarthy] was required to “act in the client’s best
interest” and use [the victim’s] funds for [the victim].
In investigating the agency’s concerns, Gordon attempted
to interview [the victim] but “she was extremely confused, was on
total care, and was bed bound at that point.”
[The victim’s] bank records showed numerous debit
transactions at the White Rose as well as transactions for cash.
Both direct and circumstantial evidence established that
[McCarthy] conducted the transactions.
A retired industrial engineer, [the victim] had income from
social security, an investment account, a pension, a life insurance
policy, and rental property. During the time [McCarthy] had
power of attorney, substantial sums were transferred from these
accounts and moved to an account accessible by a debit card. The
investigation determined that in August 2014 alone, 93
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withdrawals totaling more than $10,000 were made for purchases
that were not for [the victim]. Conservatively, monies improperly
taken from the [the victim’s] accounts and spent largely at the
White Rose totaled more than $65,000 in nine months.
In an interview with police, [McCarthy] admitted that checks
written for [the victim’s] care were made out and signed by him
as power of attorney; whereas he had [the victim] sign blank
checks that he made payable to him. Checks he made payable to
himself included a check for his new car. This occurred during the
period when [the victim’s] dementia had progressed to the point
that she did not know the month or day. During an 11-month
period, [McCarthy] wrote checks totaling close to $25,000 that
were made payable to him. During the next several months,
[McCarthy] obtained money through ATM transactions using [the
vicitm’s] debit card. Together, the value of the transactions was
more than $90,000.
An attorney for [the victim’s] estate testified that in addition
to [McCarthy], [the victim] had five other beneficiaries. [The
victim’s] residence, which had been assessed at $104,650, sold
for $57,500.
[McCarthy] testified that he believed his mother was “okay”
with him using her funds for personal purchases. He said it was
“basically procrastination” that caused him to fail to pay her bills.
He “went off the deep end” when his mother went to the nursing
home. He failed to visit his mother because he “felt that it was
best if we kind of just left it go.” He was in a “deep depression .
. . to the point where having that and my troubles with alcohol
that I could only get up and go to the White Rose . . . .”
Trial Court Opinion, 4/5/17, at 6-12 (record citations omitted). The jury found
McCarthy guilty of theft by unlawful taking, access device fraud, and two
counts of forgery. On October 21, 2016, the trial court sentenced McCarthy
as stated above. Following the denial of McCarthy’s post-sentence motions
on January 27, 2017, this timely appeal was filed.5
We restate the issues raised in McCarthy’s brief verbatim:
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5 McCarthy timely complied with the trial court’s order to file a Pa.R.A.P.
1925(b) statement of errors complained of on appeal.
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Whether the Commonwealth violated Rule 600 where, under
proper start- and end-dates and with accurate date-to-date
calculations, it delayed a minimum of 367 days before bringing
Todd McCarthy to trial, and also moved for a continuance instead
of transferring the case to an available judge even after 367 days’
delay.
Whether the trial court erroneously allowed voluminous evidence
on the condition and value of [the victim’s] house to show
McCarthy was “wasting assets” where this was irrelevant and
prejudicial in a very close case.
Whether the trial court improperly penalized McCarthy for
exercising his constitutional rights to take his case to trial and
maintain his innocence where the court imposed an aggravated-
range sentence after explicitly citing McCarthy’s failure to “take
responsibility” despite counsel’s statement that he accepted the
verdict and intended to make the estate whole.
McCarthy’s Brief at 4.
Regarding McCarthy’s first issue, our standard of review for Rule 600
claims is an abuse of discretion. Commonwealth v. Watson, 140 A.3d 696,
697-698 (Pa. Super. 2016), appeal denied, 164 A.3d 480 (Pa. 2016). It is
well-settled:
Judicial discretion requires action in conformity with law, upon
facts and circumstances judicially before the court, after hearing
and due consideration. An abuse of discretion is not merely an
error of judgment, but if in reaching a conclusion the law is
overridden or misapplied or the judgment exercised is manifestly
unreasonable, or the result of partiality, prejudice, bias, or ill will,
as shown by the evidence or the record, discretion is abused.
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.
Additionally, when considering the trial court’s ruling, this Court is
not permitted to ignore the dual purpose behind Rule 600. Rule
600 serves two equally important functions: (1) the protection of
the accused’s speedy trial rights, and (2) the protection of society.
In determining whether an accused’s right to a speedy trial has
been violated, consideration must be given to society’s right to
effective prosecution of criminal cases, both to restrain those
guilty of crime and to deter those contemplating it. However, the
administrative mandate of Rule 600 was not designed to insulate
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the criminally accused from good faith prosecution delayed
through no fault of the Commonwealth.
So long as there has been no misconduct on the part of the
Commonwealth in an effort to evade the fundamental speedy trial
rights of an accused, Rule 600 must be construed in a manner
consistent with society’s right to punish and deter crime. In
considering these matters . . ., courts must carefully factor into
the ultimate equation not only the prerogatives of the individual
accused, but the collective right of the community to vigorous law
enforcement as well.
Watson, supra (citation omitted).
Rule 600 provides in relevant part:
(A) Commencement of Trial; Time for Trial
(1) For the purpose of this rule, trial shall be deemed to
commence on the date the trial judge calls the case to trial,
or the defendant tenders a plea of guilty or nolo contendere.
(2) Trial shall commence within the following time periods.
(a) Trial 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.
....
(C) Computation of Time
(1) For purposes of paragraph (A), 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.
....
(3)(a) When a judge or issuing authority grants or denies a
continuance:
(i) the issuing authority shall record the identity of the party
requesting the continuance and the reasons for granting or
denying the continuance; and
(ii) the judge shall record the identity of the party requesting
the continuance and the reasons for granting or denying the
continuance. The judge also shall record to which party the
period of delay caused by the continuance shall be
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attributed, and whether the time will be included in or
excluded from the computation of the time within which trial
must commence in accordance with this rule.
Pa.R.Crim.P. 600.6
“Rule 600 requires the Commonwealth to try a defendant within 365
days of the filing of the complaint.” Commonwealth v. Roles, 116 A.3d 122,
124 (Pa. Super. 2015), appeal denied, 128 A.3d 220 (Pa. 2015).
For purposes of determining the time within which trial must be
commenced pursuant to paragraph (A), paragraph (C)(1) makes
it clear that any delay in the commencement of trial that is not
attributable to the Commonwealth when the Commonwealth has
exercised due diligence must be excluded from the computation
of time. Thus, the inquiry for a judge in determining whether
there is a violation of the time periods in paragraph (A) is whether
the delay is caused solely by the Commonwealth when the
Commonwealth has failed to exercise due diligence. If the delay
occurred as the result of circumstances beyond the
Commonwealth’s control and despite its due diligence, the time is
excluded. In determining whether the Commonwealth has
exercised due diligence, the courts have explained that due
diligence is fact-specific, to be determined case-by-case; it does
not require perfect vigilance and punctilious care, but merely a
showing the Commonwealth has put forth a reasonable effort.
Delay in the time for trial that is attributable to the judiciary may
be excluded from the computation of time. However, when the
delay attributable to the court is so egregious that a constitutional
right has been impaired, the court cannot be excused for
postponing the defendant’s trial and the delay will not be
excluded.
Pa.R.Crim.P. 600, cmt. (citations, quotation marks and brackets omitted).
“The Commonwealth has the burden of establishing by a preponderance of
the evidence that it exercised due diligence throughout the prosecution.”
Roles, 116 A.3d at 125.
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6 Effective July 1, 2013, our Supreme Court adopted a new Rule 600, which
reflected prevailing case law. See Pa.R.Crim.P. 600, cmt.
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Before we address the merits of McCarthy’s claim that the
Commonwealth failed to bring him to trial within 365 days from the filing of
the criminal complaint, we highlight certain points relevant to the Rule 600
computation. First, the criminal complaint was filed on February 26, 2015,
and, therefore, the mechanical run date for purposes of Rule 600 was 365
days after the complaint was filed, i.e., February 26, 2016. Second,
McCarthy’s trial commenced on September 12, 2016, 199 days beyond the
mechanical run date. Therefore, to determine whether a Rule 600 violation
occurred here, we must determine only whether sufficient excludable time
existed.
Upon review of the record, we agree with the trial court’s analysis of the
relevant periods of excludable time, but we find the trial court made incorrect
calculations. Therefore, we proceed to our own calculations.
Under Rule 600, the start date for a prompt trial calculation is the date
on which the criminal complaint is filed. See Pa.R.Crim.P. 600(A)(2)(a)
(requiring that a trial must commence “within 365 days from the date on which
the complaint is filed”). Here, using the date of the filing of the complaint as
the start date and the September 12, 2016 trial date as the end date for
purposes of Rule 600, we calculate 564 days from the filing of the complaint,
i.e., 199 days beyond the 365-day requirement of Rule 600.
The trial court correctly determined, as did the parties, that the 148-day
period between August 10, 2015 and January 5, 2016 was excludable based
upon defense continuances. See Trial Court Opinion, 4/5/2017, at 5;
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McCarthy’s Brief at 28-29; Commonwealth’s Brief at 17. As a result, 148
excludable days subtracted from the 564 total days yields 416 days, or 51
days in excess of the 365-day requirement of Rule 600.
The trial court also correctly determined that the 49-day period between
July 25, 2016, and the September 12, 2016 disposition of McCarthy’s Rule 600
motion, which coincided with the start of his trial, was excludable. We agree.
The delay occasioned between July 25, 2016 and September 12, 2016,
resulted from the unavailability of time on the trial court’s calendar. See
Commonwealth v. Mills, 162 A.3d 323, 325 (Pa. 2017) (noting that “where
a trial-ready prosecutor must wait several months due to a court calendar,
the time should be treated as “delay” for which the Commonwealth is not
accountable”). Therefore, subtracting the 49 days between July 25, 2016,
and September 12, 2016, from the 416 days, brings us to 367 days, i.e., two
days by which the Commonwealth exceeded the 365-day requirement of Rule
600.
In other words, from February 26, 2015, when the criminal complaint
was filed to August 10, 2015, when McCarthy requested his first continuance,
165 days elapsed. From January 5, 2016 to July 25, 2016, an additional 202
days elapsed. Consequently, the net elapsed time is 367 days, which exceeds
by two days the maximum 365 days permitted by Rule 600(A)(2)(a).
Nevertheless, we conclude that no Rule 600 violation occurred because
the 365th day fell on a Saturday, and consequently and necessarily, Day 367
fell on a Monday. It is settled that “[w]henever the last day of any such period
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(of time referred to in a statute) shall fall on a Saturday or Sunday, or on any
day made a legal holiday by the laws of this Commonwealth or of the United
States, such day shall be omitted from the computation.” 1 Pa.C.S. § 1908.
See Pa.R.Crim.P. 600, cmt. (“When calculating the number of days set forth
herein, see the Statutory Construction Act, 1 Pa.C.S. § 1908.”) See also
Commonwealth v. Sanford, 441 A.2d 1220, 1221-1222 (Pa. 1982)
(applying Section 1908 of the Statutory Construction Act to prompt trial
calculation).7 Accordingly, consistent with Section 1908 of the Statutory
Construction Act and Sanford, we conclude that the trial court did not abuse
its discretion in denying McCarthy’s Rule 600 motion.8 Therefore, McCarthy’s
first claim fails to warrant relief.
McCarthy next claims the trial court abused its discretion in allowing the
Commonwealth to introduce evidence of waste by discussing the condition and
value of the victim’s house, while McCarthy was in charge of the victim’s care.
Specifically, McCarthy contests the trial court’s admission of evidence that,
through McCarthy’s action or inaction, the value and condition of the victim’s
house had diminished while McCarthy cared for the victim. McCarthy maintains
evidence of waste was not relevant to establish the underlying charges of theft
by unlawful taking, access device fraud, or forgery.
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7The Sanford Court applied Pa.R.Crim.P. 1100, the former version of Rule
600.
8 Although our reasoning differs from that of the trial court, we may affirm for
reasons other than those given by the trial court. See Commonwealth v.
Claffey, 83 A.3d 780, 790 n.5 (Pa. Super. 2013).
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The Commonwealth counters that the trial court did not abuse its
discretion in this regard because the evidence of the value and condition of
the victim’s house is relevant to show McCarthy’s criminal intent with respect
to the crimes of theft of unlawful taking, access device fraud, and forgery.
The Commonwealth reasons that the value and condition of the victim’s house
establishes that McCarthy “was wasting [the victim’s] assets for his own
benefit and doing nothing to take care of them which in turn affected not only
[the victim], but also the heirs of her assets.” Commonwealth’s Brief at 20.
In reviewing McCarthy’s argument, we are guided by the following legal
principles.
[T]he admissibility of evidence . . . rests within the sound
discretion of the trial court, and therefore, we “will reverse [the]
trial court’s decision . . . only if the appellant sustains the ‘heavy
burden’ to show that the trial court has abused its discretion.”
****
It is not sufficient to persuade the appellate court that it might have
reached a different conclusion[;] it is necessary to show an actual
abuse of the discretionary power. An abuse of discretion will not be
found based on a mere error of judgment, but rather exists where
the court has reached a conclusion [that] overrides or misapplies the
law, or where the judgment exercised is manifestly unreasonable, or
the result of partiality, prejudice, bias or ill-will.
Commonwealth v. Christine, 125 A.3d 394, 398 (Pa. 2015) (citations
omitted).
Relevance is the threshold for admissibility of evidence.
Commonwealth v. Cook, 952 A.2d 594, 602 (Pa. 2008). “Evidence is
relevant if: (a) it has any tendency to make a fact more or less probable than
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it would be without the evidence; and (b) the fact is of consequence in
determining the action.” Pa.R.E. 401; Commonwealth v. Drumheller, 808
A.2d 893, 904 (Pa. 2002). “Evidence that is not relevant is not admissible.”
Pa.R.E. 402. In addition, “[t]he court may exclude relevant evidence if its
probative value is outweighed by a danger of one or more of the following:
unfair prejudice, confusing the issues, misleading the jury, undue delay,
wasting time, or needlessly presenting cumulative evidence.” Pa.R.E. 403;
see Commonwealth v. Kouma, 53 A.3d 760, 770 (Pa. Super. 2012) (stating
that even when evidence meets the relevance requirements, “such evidence
may still be excluded where its probative value is outweighed by the danger
of unfair prejudice.”).
However, [e]vidence will not be prohibited merely because it is
harmful to the defendant. [E]xclusion is limited to evidence so
prejudicial that it would inflame the jury to make a decision based
on something other than the legal propositions relevant to the
case. . . . This Court has stated that it is not required to sanitize
the trial to eliminate all unpleasant facts from the jury’s
consideration where those facts are relevant to the issues at
hand[.]
Kouma, 53 A.3d at 770 (citation omitted); see Pa.R.E. 403, cmt. (defining
“unfair prejudice” as “a tendency to suggest a decision on an improper basis
or to divert the jury’s attention away from its duty of weighing the evidence
impartially.”).
At trial, the Commonwealth sought to introduce testimony and
photographs to show that after McCarthy’s mother was placed in a nursing
home, McCarthy was the only one living in her house, and he “allowed [the
house] to go to waste,” to the point that it sold for much less than its assessed
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value. N.T., 9/12–14/2016, at 33. McCarthy’s attorney objected, contending
“none of that is relevant to the case at hand,” and “[a]ny issues pertaining to
the house, the value of the house, the value of the estate … should be in
Orphan[s’] Court, should be civil matters.” N.T., 9/12-14/2016, at 31.
The trial court overruled the objection, finding “[t]he photographs of the
house … go to support the Commonwealth’s circumstantial evidence that Mr.
McCarthy was wasting the assets of his mother’s house for his mother’s
purposes as well as for the other heirs’ purposes, so I think that goes to his
intent. We will rule they are admissible.” N.T., 9/12-14/2016, at 35. See
also id. at 260-261. In its opinion, the trial court reiterated:
[McCarthy’s] defense, in part, was that his mother authorized him
to spend her money and that he lacked criminal intent. See N.T.,
296-305. Evidence that [McCarthy] failed to maintain the house
was circumstantial evidence that tended to show [McCarthy’s]
intent towards his mother and his mother’s assets.
Trial Court Opinion, 4/5/2017, at 23. We find no abuse of discretion.
While, as trial counsel argued, McCarthy’s failure to properly discharge
his duties under the POA is a breach of fiduciary duty and is an orphans’ court
matter, we agree with the trial court that the evidence that McCarthy failed to
maintain the value and condition of his mother’s house was relevant and
admissible in his criminal trial.
McCarthy was brought to trial on charges of theft by unlawful deception,
access device fraud and forgery (two counts). Theft by unlawful taking is
defined as follows: “A person is guilty of theft if he unlawfully takes, or
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exercises unlawful control over, movable property of another with the intent
to deprive him thereof.” 18 Pa.C.S. § 3921(a). A person commits the offense
of access device fraud if he: “uses an access device to obtain . . . property or
services with knowledge that . . . access device was issued to another person
who has not authorized its use.” 18 Pa.C.S. § 4106(a)(1)(ii). Lastly, forgery
is defined as follows:
(a) . . . . A person is guilty of forgery if, with intent to defraud or
injure anyone, or with knowledge that he is facilitating a fraud or
injury to be perpetrated by anyone, the actor:
...
(2) makes, completes, executes, authenticates,
issues or transfers any writing so that it purports to
be the act of another who did not authorize that act,
or to have been executed at a time or place or in a
numbered sequence other than was in fact the case,
or to be a copy of an original when no such original
existed; or
(3) utters any writing which he knows to be
forged in a manner specified in paragraphs . . . (2) of
this subsection.
18 Pa.C.S. § 4101(a)(2), and (3). As these statutory definitions indicate, the
charges against McCarthy involve, inter alia, the deprivation or the taking of
property from another without authorization.
With respect to the above crimes, the Commonwealth alleged McCarthy
used his mother’s debit card to pay his own expenses, amounting to more
than $65,000.00 and, without using the POA, had his mother sign blank
checks that he made payable to himself in various amounts, totaling almost
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$25,000.00.9 The challenged evidence that MCCarthy failed to maintain the
value and condition of the victim’s home is relevant to the issue of McCarthy’s
intent to deprive the victim of her property. The assessed value of the victim’s
house was $104,650.00, and, it sold for $57,500.00 after the victim’s death.
See N.T., 9/12-14/2016, at 261–262. These figures show McCarthy deprived
his mother of almost half the value of the house, making the full value of that
asset unavailable to her in the event she ran out of funds while at the nursing
home.
Viewed in the context of all the evidence presented by the
Commonwealth, with primary focus on the evidence showing that it was
McCarthy’s failure to pay the victim’s nursing home bills that triggered the
investigation leading to these charges, McCarthy’s failure to maintain the
value and condition of the victim’s house is relevant for the light it sheds on
McCarthy’s intent in using the victim’s credit card and directing the victim to
sign blank checks he made payable to himself.10
____________________________________________
9 See Commonwealth Exhibits 53–64. Commonwealth Exhibit 54, a check
that was payable to Diamond Auto of York and signed by the victim, was for
a car that McCarthy bought for himself. See N.T., 9/12-14/2016, at 243.
10 The $47,150.00 loss in value of the victim’s home (the difference between
the assessed value of $104,650.00 and the $57,500.00 sale price), in
combination with the approximately $25,000.00 from the victim’s checks
McCarthy made payable to himself, and the $65,000.00 McCarthy spent using
the victim’s debit card, certainly goes to McCarthy’s intent to deprive the
victim of her property.
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Furthermore, the evidence is not outweighed by a danger of unfair
prejudice. Pa.R.E. 403. The testimony and photographs conveyed to the jury
a house that was poorly kept and in poor condition – nothing more.11 Although
McCarthy asserts he was prejudiced by the evidence because it “inject[ed]
[the victim’s] other heirs into the case as additional victims, and show[ed]
McCarthy had let [the victim’s] house become ‘really disgusting,’” 12 we are
not persuaded this evidence rises to such level that would “tend[] to suggest
a decision on an improper basis or divert the jury’s attention.” Pa.R.E. 403,
cmt. The fact that this evidence was harmful to McCarthy does not provide a
valid basis for exclusion. See Kouma, supra, 53 A.3d at 770 (“[e]vidence
will not be prohibited because it is harmful to the defendant … This Court has
stated that it is not required to sanitize the trial to eliminate all unpleasant
facts from the jury’s consideration where those facts are relevant to the issues
at hand[.]”) (citation omitted). Therefore, we reject McCarthy’s claim that
this evidence was unfairly prejudicial, and conclude the jury was properly
permitted to look at and hear the evidence of waste and draw its own
inferences. Accordingly, based on the above discussion, McCarthy’s second
argument fails.
McCarthy’s final issue is a challenge to the discretionary aspects of
sentencing. Specifically, McCarthy contends:
____________________________________________
11 The trial court did exclude one photograph of a bathtub with blood as
“unduly inflammatory.” N.T., 9/12-14/2016, at 31, 35.
12 McCarthy’s Brief at 40, citing N.T., 9/12-14/2016, at 172.
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The trial court gave McCarthy a sentence in the aggravated range,
after explicitly citing his failure to “take responsibility” as
aggravation. The context of the hearing indicates the court thus
penalized McCarthy for exercising his constitutional rights to take
the case to trial and maintain his innocence.
McCarthy’s Brief at 51 (“Section 2119(f) Statement) (record citations
omitted).
Our Court has explained:
“Challenges to the discretionary aspects of sentencing do not
entitle an appellant to review as of right.” Before we address such
a challenge, we first determine:
(1) whether the appeal is timely; (2) whether Appellant
preserved his issue; (3) whether Appellant’s brief includes
a concise statement of the reasons relied upon for
allowance of appeal with respect to the discretionary
aspects of sentence; and (4) whether the concise
statement raises a substantial question that the sentence
is appropriate under the sentencing code.
Commonwealth v. Rush, 162 A.3d 530, 543 (Pa. Super. 2017) (citations
omitted), appeal denied, ___ Pa. ___ (September 15, 2017).
Here, McCarthy has complied with the procedural requirements for this
appeal by filing a timely post-sentence motion for reconsideration of sentence
and timely notice of appeal, and by including in his appellate brief a statement
of reasons relied upon for appeal pursuant to Commonwealth v.
Tuladziecki, 522 A.2d 17 (Pa. 1987), and Pa.R.A.P. 2119(f). Furthermore,
McCarthy’s claim presents a substantial question. See Commonwealth v.
Bowen, 975 A.2d 1120, 1122 (Pa. Super. 2009) (defendant’s contention that
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his sentence “was based on an unconstitutional factor … raises a substantial
question for our review”). Therefore, we proceed to the merits.
Our standard of review is well settled:
Sentencing is a matter vested in the sound discretion of the
sentencing judge, and a sentence will not be disturbed on appeal
absent a manifest abuse of discretion. In this context, an abuse
of discretion is not shown merely by an error in judgment. Rather,
the appellant must establish, by reference to the record, that the
sentencing court ignored or misapplied the law, exercised its
judgment for reasons of partiality, prejudice, bias or ill will, or
arrived at a manifestly unreasonable decision.
Commonwealth v. Grays, 167 A.3d 793, 816 (Pa. Super. 2017) (citation
omitted).
Furthermore, because McCarthy was sentenced within the aggravated
range of the sentencing guidelines, this Court may only vacate his sentence if
this “case involves circumstances where the application of the guidelines
would be clearly unreasonable[.]” 42 Pa.C.S. § 9781(c)(2).
At sentencing, the trial court stated:
… I do not take into consideration the fact that you went to
trial in this matter. You have an absolute constitutional right to
do that. I can’t and don’t hold that against you.
I do, however, agree with [the Assistant District Attorney’s]
statements that you have not accepted responsibility in this case,
and I do consider that an aggravating factor.
N.T., 10/21/2016, at 17. McCarthy argues that the trial court improperly
aggravated his sentence “because he exercised his right to trial and did not
concede guilt at sentencing.” McCarthy’s Brief at 53.
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We find no merit in this argument as the trial court cited numerous
legitimate factors to justify its aggravated range sentence. See Bowen,
supra, 975 A.2d at 1127–1128 (holding silence at sentencing may not form
the basis of finding that a defendant failed to take responsibility for his crimes,
and silence at sentencing may not be the sole basis for finding that a
defendant lacked remorse; however, remand for resentencing was not
necessary because trial court cited other aggravating factors).
As the trial court explained in its opinion:
The trial court acknowledged that [McCarthy’s] prior record score
was zero. What the trial court looked to, however, were
[McCarthy’s] criminal convictions that were not included in the
prior record score calculation. Specifically, in 2009, [McCarthy]
was placed on the Accelerated Rehabilitative Disposition program
for driving under the influence; in 2011, he was placed on
probation following a conviction for recklessly endangering; and
in 2013, he was sentenced to 90 days to six months for a second
offense of driving under the influence. Moreover, in 2014 — after
[McCarthy] committed the offenses that resulted in the
convictions at issue — he was convicted of fleeing and eluding,
driving under the influence, driving under suspension, accidents
involving damage to unattended property, and driving without
insurance.
Thus, although [McCarthy’s] prior record score is zero, this
designation does not adequately reflect a significant history of
alcohol-related offenses. [McCarthy] was afforded the
rehabilitative resources of the criminal justice system but failed to
correct his criminal conduct. Moreover, even after he committed
the instant offenses and was under investigation, he remained
undeterred and both drove while intoxicated and fled from police.
[McCarthy] also contends that the trial court erroneously
considered that [McCarthy] was neglecting Miller. The trial court
did not find that [McCarthy] physically abused Miller. Rather, the
trial court considered that the elderly victim was vulnerable and
[McCarthy] took full advantage of her reduced mental and physical
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state to unlawfully misappropriate the funds she had set aside for
her retirement. This was at the expense of paying Rest Haven,
Visiting Angels, and York Hospital for her care and also at the
expense of performing routine maintenance of her residence, thus
diminishing its resale value. Moreover, [McCarthy’s] apparent
motive for what the trial court deemed to be callous treatment of
his mother was to purchase and consume large quantities of
alcohol.
Finally, [McCarthy] contends that the trial court improperly
found that “he had not properly treated his alcohol problems
despite a lengthy period of sobriety and counsel’s explanation that
he postponed treatment only due to the timing of the trial.” It was
undisputed that [McCarthy] failed to follow through with the
recommendations stemming from a Drug and Alcohol Evaluation.
He attempted to justify this failure but the fact remained that
[McCarthy] could have complied with the treatment
recommendation and did not. The trial court properly considered
this fact to bear on [McCarthy’s] rehabilitation, recidivism risk,
and ability to conform his behavior to the requirements of the law.
In summary, the trial court weighed a number of factors
that it properly considered to be aggravating and placed on the
record its reasons for imposing a sentence in the aggravated
range.
Trial Court Opinion, 4/5/2017, at 24–27. Based on our review of the notes of
testimony of the sentencing hearing, we find no abuse of discretion. The trial
court’s sentence, which falls within the sentencing guidelines, is not “clearly
unreasonable.” 42 Pa.C.S. § 9781(c). Accordingly, we reject McCarthy’s
discretionary aspects of sentencing claim.
Judgment of sentence affirmed.
Judge Platt joins the opinion.
Judge Stabile files a concurring and dissenting opinion.
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Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 02/06/2018
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