Com. v. Kolovich, R.

J. S26016/17
NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
COMMONWEALTH OF PENNSYLVANIA : IN THE SUPERIOR COURT OF
: PENNSYLVANIA
:
v. :
:
ROBERT ANTHONY KOLOVICH, :
:
APPELLANT :
: No. 1709 MDA 2016
Appeal from the Judgment of Sentence July 1, 2016
In the Court of Common Pleas of Snyder County
Criminal Division at No(s): CP-55-CR-0000105-2015
CP-55-CR-0000325-2014
BEFORE: BOWES, J., DUBOW, J., and FITZGERALD, J.*
MEMORANDUM BY DUBOW, J.: FILED MAY 25, 2017
Appellant, Robert Anthony Kolovich, appeals from the Judgment of
Sentence entered in these consolidated cases on July 1, 2016, in the Snyder
County Court of Common Pleas following his conviction of four counts of
Deceptive Business Practices. After careful review, we affirm.
Appellant was the owner of Lifetime Choice Windows, a business that
purported to sell windows and perform deck-capping services. Beginning in
May 2013, Appellant entered into various contracts in which he agreed to
either purchase windows for customers or to cap their decks. Appellant
*
Former Justice specially assigned to the Superior Court.
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accepted down-payments for those services; however, Appellant did not
perform on the contracts or return the down-payments he received.
On October 2, 2014, the Commonwealth charged Appellant at Case
No. 325-2014 with two counts of Deceptive Business Practices and one count
of Theft by Deception1 arising from a June 28, 2013 contract with Mary
Romig to perform deck-capping services. On March 20, 2015, the
Commonwealth charged Appellant at Case No. 105-2015 with two additional
counts of Deceptive Business Practices and one additional count of Theft by
Deception arising from an October 4, 2013 contract with Chad Keister, Brent
Saylor, and Saylor’s construction firm Saylor & Page Construction for window
procurement.
On September 9, 2015, the Commonwealth filed a Motion in Limine to
introduce evidence pursuant to Pa.R.E. 404(b) of crimes, wrongs, or other
acts on the part of Appellant, and to Consolidate Case No. 325-2014 with
Case No. 105-2015 for trial. On November 2, 2015, the trial court granted
the portion of the Motion seeking to consolidate the matters for trial. With
respect to the Motion in Limine, on December 11, 2015, the court issued an
order directing the Commonwealth to file an Amended Motion providing
more detail as to the type of other crimes, wrongs, or acts the
Commonwealth sought to introduce. The Commonwealth complied with the
1
18 Pa.C.S. § 4107(a)(2); 18 Pa.C.S. § 4107(a)(6); and 18 Pa.C.S. §
3922(a)(1).
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Order; however, the court denied the Commonwealth’s Motion and Amended
Motion on January 26, 2016.
On March 23, 2016, the Commonwealth again amended the Motion in
Limine, providing the court with more information.2 The court granted the
Amended Motion on April 7, 2016.
On April 4, 2016, Appellant filed a Motion to Bar Prosecution pursuant
to 18 Pa.C.S. § 110, arguing that the Commonwealth should have joined the
instant cases with Union County Case No. 273-2014, in which a jury had
acquitted Appellant of similar charges. The trial court denied this Motion on
April 18, 2016.
Following Appellant’s trial on April 26, 2016, the jury convicted
Appellant in both cases of Deceptive Business Practices and acquitted him of
Theft by Deception. On July 1, 2016, the court sentenced Appellant to an
aggregate sentence of 6 to 60 months’ incarceration. The court awarded
Appellant 201 days’ credit for time served.
Appellant filed a Post-Sentence Motion on July 11, 2016, which the
trial court denied. This appeal followed. Appellant and the trial court
complied with Pa.R.A.P. 1925.
Appellant raises the following four issues on appeal:
2
The Commonwealth sought to admit evidence that it had charged Appellant
on September 3, 2014, in Union County at Case No. 273-2014 with similar
crimes arising from an October 26, 2013 service contract to perform
construction services, where Appellant had failed to perform the services
under the contract or repay the funds the victims paid him.
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1. Did error occur when the [t]rial [c]ourt permitted
consolidation?
2. Did error occur where the [t]rial [c]ourt permitted
admission of other alleged crimes, wrongs[,] and/or acts?
3. Did the [t]rial [c]ourt err in denying Appellant’s Motion
under 18 Pa.C.S.[] Sec. 110?
4. Was evidence insufficient to convict Appellant as the
Commonwealth did not prove guilt beyond a reasonable
doubt, nor did the Commonwealth prove that Appellant
had the requisite intent to establish guilt?
Appellant’s Brief at 7.
In his first issue, Appellant challenges the trial court’s Order granting
the Commonwealth’s Motion for Consolidation, arguing that the
Commonwealth failed to follow the proper procedures for consolidation. Id.
at 11.3
The consolidation of criminal cases is controlled by Pa.R.Crim.P. 582.
Rule 582(B)(1) requires that the Commonwealth notify a defendant of its
intent to consolidate separate indictments or informations at or before
arraignment. See Pa.R.Crim.P. 582(B)(1). If, however, such notice is not
provided, “any party may move to consolidate for trial separate indictments
or informations, which motion must ordinarily be included in the omnibus
pretrial motion.” Pa.R.Crim.P. 582(B)(2) (emphasis added).
3
Where an appellant challenges the interpretation of the rules of criminal
procedure, “our standard of review is de novo and our scope of review is
plenary.” Commonwealth v. Libengood, 152 A.3d 1057, 1059 (Pa.
Super. 2016) (citation omitted).
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Here, the Commonwealth did not notify Appellant of its intent to
consolidate the instant cases at or before his April 13, 2015 arraignment.
Rather, on September 23, 2015, the Commonwealth filed a Motion to
Consolidate. Appellant argues that because the Commonwealth did not
notify him of its intent at or before his arraignment, and failed to file an
Omnibus Pretrial Motion within 30 days of his arraignment, 4 the trial court
erred in granting the Commonwealth’s Motion to Consolidate. Appellant’s
Brief at 11-12.
We disagree with Appellant. Although Rule 582(B)(2) provides that a
Motion to Consolidate would “ordinarily be included in the omnibus pretrial
motion[,]” nothing in the Rule precludes a later filing. Moreover, we note
that Appellant has not alleged that the court’s Order consolidating his cases
prejudiced him in any way. See Commonwealth v. Boyd, 461 A.2d 1294,
1298 (Pa. Super. 1983) (noting that “courts have held that consolidation of
separate informations for trial is a matter of discretion with the trial judge,
and that the exercise of this discretion will be reversed only for manifest
abuse of discretion or prejudice and clear injustice to the defendant.”).
Accordingly, Appellant is not entitled to relief.
In his second issue, Appellant alleges that the trial court erred in
admitting Pa.R.Crim.P. 404(b) evidence of crimes, wrongs, or other acts on
4
See Pa.R.Crim.P. 579(A), which directs filing of the omnibus pretrial
motion within 30 days, unless the opportunity did not exist or counsel was
not aware of the grounds for the motion.
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the part of Appellant. Appellant’s Brief at 12-13. He claims that the court
erred in entertaining, and subsequently granting, the Commonwealth’s
Second Amended Motion because, in so doing, it permitted the
Commonwealth to take a “third bite at the apple[,]” which “flies in the face
of [Appellant’s] constitutional rights to due process, compulsory process and
informed nature of charges under Article One Section Nine of the
Pennsylvania Constitution and the Fifth, Sixth and 14th Amendments [sic] to
the U.S. Constitution.” Id. at 13.5
Notably, Appellant does not challenge the substance of the admitted
evidence, or the purpose for which the trial court permitted its admission, or
the probative versus prejudicial value of the evidence. Rather, Appellant
claims that, in granting the Commonwealth’s Second Amended Motion to
5
Our standard of review of the admission of evidence is well-settled:
The admission of evidence is a matter vested within the
sound discretion of the trial court, and such a decision
shall be reversed only upon a showing that the trial court
abused its discretion. In determining whether evidence
should be admitted, the trial court must weigh the relevant
and probative value of the evidence against the prejudicial
impact of the evidence. Evidence is relevant if it logically
tends to establish a material fact in the case or tends to
support a reasonable inference regarding a material fact.
Although a court may find that evidence is relevant, the
court may nevertheless conclude that such evidence is
inadmissible on account of its prejudicial impact.
Commonwealth v. Antidormi, 84 A.3d 736, 749 (Pa. Super. 2014)
(citation omitted).
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admit the evidence, the court violated Appellant’s due process rights.
Appellant has not, however, developed this argument in any meaningful way
and has not supported this averment with citation to controlling authority or
to the place in the record where he preserved this claim. Accordingly, we
find this issue waived. See Pa.R.A.P. 2117(c); 2119(c), (e).
In his third issue, Appellant claims the trial court erred in denying his
Section 110 Motion. Appellant baldly claims that because the
Commonwealth accused him of the same criminal conduct in Union and
Snyder Counties,6 Section 110(1)(ii) barred the Commonwealth from
prosecuting him in Snyder County after his October 30, 2015 Union County
acquittal. Appellant’s Brief at 13-14.
Appellant challenges the trial court’s interpretation and application of
18 Pa.C.S. § 110. Thus, “our standard of review is de novo, and our scope
of review is plenary.” Commonwealth v. Fithian, 961 A.2d 66, 71 n.4 (Pa.
2008).
Section 110 provides, in relevant part, as follows:
§ 110. When prosecution barred by former
prosecution for different offense
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:
6
The Commonwealth has accused Appellant of similar conduct in Snyder and
Union, as well as nine other counties. Snyder and Union counties comprise
the 17th Judicial District.
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(1) The former prosecution resulted in an acquittal or
in a conviction as defined in section 109 of this title
(relating to when prosecution barred by former
prosecution for the same offense) 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. § 110(1)(ii).
As has been summarized by our Supreme Court, Section 110(1)(ii)
contains four requirements which, if met, preclude subsequent prosecution
due to a former prosecution for a different offense:
(1) the former prosecution must have resulted in an
acquittal or conviction;
(2) the current prosecution is based upon the same
criminal conduct or arose from the same criminal
episode as the former prosecution;
(3) the prosecutor was aware of the instant charges
before the commencement of the trial on the
former charges; and
(4) the current offense occurred within the same
judicial district as the former prosecution.
Fithian, 961 A.2d at 72.
Appellant also argues that the trial court’s reliance on
Commonwealth v. Nolan, 855 A.2d 834 (Pa. 2003), is misplaced in that
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Nolan’s discussion differentiating criminal enterprises and episodes is not
applicable to this case. Id. at 13.
In Nolan, supra, the Commonwealth charged the defendant with
stealing and reselling more than 25 vehicles from individuals and dealerships
in Lackawanna and Luzerne Counties over a seven-month period. Nolan,
855 A.2d at 835-36. Ultimately, pursuant to a plea agreement, Appellant
pled guilty in Lackawanna County to nine counts of Receiving Stolen
Property and one count of Theft. Id. at 835. Three months later, at the
start of his Luzerne County trial, Nolan moved for the dismissal of all
charges pending against him, asserting, inter alia, the applicability of Section
110’s compulsory joinder rule. Id. at 837. The trial court granted the
motion in part, and dismissed all charges that the trial court concluded
overlapped with the Lackawanna County prosecution. Id. A Luzerne
County jury convicted Nolan of six counts of Theft by Unlawful Taking and
five counts of Receiving Stolen Property. Id.
Following a direct appeal, Nolan unsuccessfully sought post-conviction
ineffective assistance of counsel relief related to his Section 110 claim. Id.
at 838. The post-conviction relief court found that “[Nolan] failed to
demonstrate how his elaborate criminal operation, which transpired on
different dates, with different victims, different police departments, and
which was separately charged in different counties eight months apart, were
‘logically and temporally related’ such as might constitute a single criminal
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episode.” Id. (citing Commonwealth v. Hude, 458 A.2d 177, 183 (Pa.
1983) (holding that, at a minimum, § 110 requires events be “logically and
temporally related[,]” which is determined by considering, among other
things, the degree to which the events raise duplicative issues of law and
fact)). Our Supreme Court agreed with the post-conviction relief court, and
concluded that the defendant’s multi-faceted illegal operation did not
constitute a single criminal episode for purposes of Section 110. Nolan, 855
A.2d at 841.
In the instant matter, Appellant does not analyze or distinguish the
facts in the instant matter from those in Nolan. The trial court concluded
that, although Appellant’s “actions may constitute one criminal enterprise[,
they do not constitute] one criminal episode.” We agree with the trial court
that the Section 110(1)(ii) did not bar Appellant’s subsequent prosecution in
Snyder County. We conclude that, as with the actions in Nolan, Appellant’s
acts, which occurred in different locations and over a period of many months
in Snyder and Union Counties, lacked the logical and temporal relationship to
constitute one criminal episode, which would have necessitated the cases’
joinder. Accordingly, this claim fails.
In his last issue, Appellant claims the Commonwealth failed to adduce
sufficient evidence to sustain his conviction. Appellant’s Brief at 14.
Appellant argues that, in the absence of any evidence of his intent to
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deceive, the Commonwealth merely proved that he was a “less than stellar
businessman[, not] a criminal.” Id. at 14-15.
We apply the following standard of review when considering a
challenge to the sufficiency of the evidence:
In determining whether the evidence was sufficient to
support a defendant’s conviction, we must review the
evidence admitted during the trial along with any
reasonable inferences that may be drawn from that
evidence in the light most favorable to the Commonwealth
as the verdict winner. If we find, based on that review,
that the jury could have found every element of the crime
beyond a reasonable doubt, we must sustain the
defendant’s conviction.
Commonwealth v. Crawford, 24 A.3d 396, 404 (Pa. Super. 2011)
(citation omitted). “The Commonwealth is not required to depend upon
proof by direct evidence, but may also meet its burden by circumstantial
evidence alone.” Id. at 405.
The Crimes Code defines the offense of Deceptive Business Practices,
in relevant part, as either “sell[ing], offer[ing] or expos[ing] for sale, or
deliver[ing] less than the represented quantity of any commodity or
service[,]” or “mak[ing] or induc[ing] others to rely on a false or misleading
written statement for the purpose of obtaining property or credit.” See 18
Pa.C.S. §§ 4107(a)(2), (a)(6).7
7
Although Appellant asked for, and received, a jury instruction regarding
intent, the statutory definition of Deceptive Business Practices does not
contain any element of intent.
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We have reviewed the record in this case and conclude that the jury as
fact-finder had sufficient evidence on which to base Appellant’s convictions.
In conducting our review, we find the trial court ably addressed and
analyzed Appellant’s sufficiency argument in its Rule 1925(a) Opinion. See
Trial Ct. Op., 9/13/16, at 5-9. We, therefore, adopt that portion of the
Opinion as our own. The parties are directed to attach the September 13,
2016 Opinion to any future filings.
Judgment of Sentence affirmed.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 5/25/2017
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COMMONWEALTH OF PENNSYLVANIA IN THE COURT OF COMMON PLEAS
: OF THE 17TH JUDICIAL DISTRICT
vs. OF PENNSYLVANIA
SNYDER COUNTY BRANCH
ROBERT A. KOLOVICH,
Defendant : CRIMINAL DIVISION
NO. CP-55-CR-325-2014
: NO. CP-55-CR-105-2015
OPINION if9LEF
Knight, S.J. - September 139 2016 SEP 3 ZOle
PROTHONOTARY AND CLERK OF ri3OWITS
1. Introduction. SNYDER 00111-4TY
The Defendant was charged in two separate cases - No. 325-2014 (victim
Mary Romig) and 105-2015 (victim Brent Saylor/ Chad Keister) - with two
counts of deceptive business practices, violation 18 Pa. C.S.A. §4107(a)(2) and
(6), and one count of theft by deception, violation 18 Pa. C.S.A. §3922(a)(1).
On September 29, 2015 the Commonwealth filed a motion in limine
seeking to introduce pursuant to Pa.R.E. 404(b) evidence of crimes, wrongs or
other acts on the part of the Defendant. President Judge Michael T. Hudock
issued an Order on December 11, 2015 directing the Commonwealth to file an
Amended Motion providing greater details on the type of other crimes, wrongs,
or acts evidence the Commonwealth intended to introduce. The initial motion
and amended motion were then denied by President Judge Michael Hudock on
January 26, 2016. The Commonwealth thereafter on March 23, 2016 filed A
Second Amended Motion in Limine seeking to introduce the same evidence but
providing more details. Judge Hudock granted the Amended Motion granted
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on April 7, 2016. The Commonwealth additionally filed a motion to consolidate
the two cases for trial, which we granted on November 2, 2015. The Defendant
also filed Motion to bar Prosecution Under 18 Pa.C.S,A. §110, which Motion
was denied by Judge-Hudock on April 18, 2016. Shortly before trial the
Defendant filed a Motion in Limine asking the Court to give a jury instruction
in regard to the charges of deceptive business practices, that the
Commonwealth must prove that the Defendant acted with an intent to deceive
and asking the Court to exclude certain evidence regarding communications
from one of Defendant's suppliers as inadmissible hearsay. We granted the
Motion on April 26 shortly before the trial was to start.
At trial on April 26, 2016 the Defendant was convicted by the jury in
both cases on each of the theft by deception counts and acquitted on the count
of theft by deception. Sentencing took place on July 1, 2016, which was
followed by the Defendant's Motion for Post-Sentence Relief filed on July 11,
2016, which is now before the Court. Both sides have filed supporting briefs,
and we issue this Opinion in support of our decision to deny the Defendant's
Motion.
2. Discussion.
The Defendant raises four issues in his Post -Sentence Motion, which we
will address in order as follows.:
*The Defendant included two additional issues in his Motion - verdict against the weight of the evidence and a
-
violation of his constitutional rights which he did not brief. We, therefore, consider them waived.
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2.1. Whether the Court Erred in Consolidating for Trial the
Defendant's Two Cases.
The Defendant's Motion is not based on any substantive objection to
consolidation but rather on the fact that the Commonwealth did not give Notice
to the Defendant of its intent to consolidate at or before arraignment as
required by Pa.R.Crim.P. 582(B)(1), or in the alternative did not include the
consolidation request in an omnibus pretrial motion which under Pa.R.Crim. P.
579 (A) should have been filed within 30 days of arraignment.
A close reading of the rule shows that the "notice" procedure allows for
immediate consolidation but subsection (B)(2) also allows for the filing of a
separate Motion for Consolidation where such "notice" is not given. The rule
suggests that such a motion would normally be part of an omnibus pretrial
motion. Admittedly the Commonwealth's Motion was not filed within 30 days
of arraignment. But nothing in the rule precludes a later filing. Moreover, the
Defendant has alleged no "prejudice or manifest injustice" from the Court's
decision to consolidate. Commonwealth u, Nahavandian, 849 A.2d 1221, 1227
(Pa. Super. 2004).
2.2. Whether the Court Erred in. Allowing the Introduction into
Evidence of Other Crimes, Wrongs, or Acts.
The Defendant challenges the decision by Judge Hudock to allow the
Commonwealth to succeed in its effort to be allowed to introduce evidence of
other.crimes, wrongs, or acts by the filing of a Second Amended Motion to allow
such evidence when its first Motion was denied.
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The Commonwealth contends in its brief that the "coordinate jurisdiction
rule" precludes our reviewing Judge Hudock's decision on April 7, 2016. The
rule provides that judges of coordinate jurisdictions (i.e. in this case a judge of
the same judicial district as the present judge) should not overrule each other's
decisions. "This rule...is a rule of sound jurisprudence based on a policy of
fostering the finality of pre-trial applications in an effort to maintain judicial
economy and efficiency." Commonwealth v. Starr, 664 A.2d 1326, 1331 (Pa.
1995).
We agree with the Commonwealth. We cannot disturb Judge Hudock's
ruling so we have no authority to review it. For purposes of this decision we
rely upon the Order entered by Judge Hudock and incorporate it into this
Opinion.
2.3. Whether the Court Erred in Denying Defendant's Motion to Bar
Prosecution under 18 Pa.C.S.A. §110.
The Defendant contends that because he was acquitted in Union County,
on charges of the same or similar criminal conduct as in this case, and
because Union and Snyder Counties are part of the same judicial District, the
previous Union County prosecution bars prosecution in this case. Judge
Hudock's April 18, 2016 decision to deny Defendant's Motion relied upon the
Supreme Court's decision in Commonwealth v. Nolan, 855 A.2d 834, 839 (Pa.
0
2003). As Judge Hudocic noted, the Defendant may have been involved in one
criminal enterprise in both counties but not one criminal episode.
4
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The Commonwealth again contends that we cannot review Judge
Hudock's ruling because of the "coordinate jurisdiction rule." As we stated
before on the issue of the admission of other crimes, wrongs, or acts, we
cannot overturn.Judge Hudock's ruling and, therefore, rely upon his decision
as part of our opinion.
2.4. Whether There Was Sufficient Evidence to Convict the
Defendant of Deceptive Business Practices.
Our well -settled standard of review when evaluating a
challenge to the sufficiency of the evidence mandates
that we assess the evidence and all reasonable
inferences drawn therefrom in the light most favorable
to the verdict -winner. Commonwealth v. Salamone,
897 A.2d 1209, 1213 (Pa.Super. 2006) (citation
omitted). We must determine whether there is
sufficient evidence to enable the fact finder to have
found every element of the crime beyond a reasonable
doubt. Commonwealth v. Clark, 895 A.2d 633, 634
(Pa.Super. 2006) (citation omitted).
In applying the above test, we may not weigh the
evidence and substitute our judgment for that of 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 defendants 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. More-
over, 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
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the evidence.
Commonwealth v. Kerry, 906 A.2d 1237, 1240 (Pa.Super. 2006).
As requested by the Defendant we added a jury instruction requiring proof
beyond a reasonable doubt of an intent to deceive, TheDefendant
acknowledges that such intent may be shown by circumstantial evidence. Yet
without any specific evaluation of the evidence in terms of its insufficiency, the
Defendant argues the evidence was insufficient to show an "intent to deceive."
The Defendant's failure to be specific and particular as to the grounds for relief
results in a waiver of his argument. Pa. R.Crim.P. 720(B)(1) states that "All
requests for relief from the trial court must be stated with specificity and
particularity." The Official Comment to the rule expands on the foregoing
requirement:
Under paragraph (B)(1)(a), the grounds for the post -sentence
motion should be stated with particularity. Motions alleging
insufficient evidence, for example, must specify in what way
the evidence was insufficient ...
In Commonwealth v. Thoeun Tha, 64 A.3d 704, 713 (Pa. Super. 2013),
a case dealing with a post-sentence motion, the Superior Court stated, "Failure
to present or develop an argument in support of a claim causes it to be
waived." 64 A.2d at 713.
In his brief,the Defendant makes the comment, "Where, as here, an
accused does not testify, it is well-nigh impossible [to show an intent to
deceive)." We don't understand the Defendant's argument unless he is saying
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that an intent to deceive can only be derived from some kind of statement of
intention on the part of a defendant.
As noted; that is not the law. It is proper to consider surrounding
circumstances ,to (determine an intent to deceive. "...and intent,to deceive,.like
any other element of the burden of proof, may be inferred from conduct or from
facts and attendant circumstances which are of such a nature as to prove [a
defendant's] guilt beyond a reasonable doubt." Commonwealth v. Shapiro, 418
A.2d 594, 598 (Pa. Super. 1980).
The evidence in this case showed that the Defendant took money
deposits from the victims. Brent Saylor testified that after making the down
payment, with a promised delivery of windows within 5 to 6 weeks, the
windows never arrived. Saylor had conversations with the Defendant in which
the Defendant said he had trouble getting the windows. He never offered
Saylor any proof he had placed an order. Eventually, Saylor could not get hold
of the Defendant. Saylor never received any money back from the Defendant.
The daughter of the second victim Mary Romig provided the Defendant
with a down payment. Delivery was promised in 6 to 8 weeks. At the 7th week
of no delivery the daughter contacted the Defendant who said it was only the
7th week and that the windows would be in the following week. After the 8th
week with no windows, the daughter contacted the Defendant on a weekly
basis for almost two months. At the point of 14 weeks the Defendant was
offering such excuses as he had a worker in the hospital, or the product was
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hard to get. Eventually, Mrs. Romig asked for her money back. The Defendant
promised to return the money the very next week. No money was received. On
a particular Friday the daughter talked to the Defendant's secretary who said
..he was out sick and would be back Monday. .0n Monday the daughter,called
and was told the Defendant was still out sick. The daughter threatened to go
to the police if the money was not returned. Nothing happened. Eventually,
the only response the daughter got from her calls was an answering machine.
The Commonwealth presented testimony from other victims of the
Defendant - Ronald Hamm, Rae Ann Karchner, Deborah Maggs, and Donna
Kefalas - all of whom told similar stories. They gave the Defendant a deposit
on windows or deck work; weeks passed with no delivery of materials; when
contacted the Defendant offered various excuses such as illness, bad weather,
too busy with otheriobs; requests for refunds were ignored; and eventually a
the victims were completely unable to reach the Defendant.
The factual scenarios presented by the Commonwealth are reminiscent of
the evidence in Commonwealth v. Eline, 940 A.2d 421, 433 (Pa. Super. 2007) in
which an intent to deceive beyond a reasonable doubt was found from the fact
that the defendant took money deposits from the victims, never performed the
promised work (construction of swimming pools) within the agreed time or at
all, was unresponsive to repeated telephone calls from the victims, and never
refunded their money.
We have no hesitation in concluding there was sufficient evidence for the
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jury to convict the Defendant of deceptive business practices.
3. Conclusion.
For the above stated reasons, we can find no error committed by the trial
court. By separate Order the Defendant's Post -Sentence Motion will be denied.
BY THE COURT:
It W V.A.7t
Knight
Copies to: District Attorney
Brian Ulmer, J.D.
Jenna Neidig, J.D., Law Cleric
Judge Knight's file
Ecopies: Hon. Michael T. Hudock, P.J.
Hon. Michael H. Sholley, J.
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