Com. v. Janis, J.

J-A16006-22
NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
COMMONWEALTH OF PENNSYLVANIA : IN THE SUPERIOR COURT OF
: PENNSYLVANIA
:
v. :
:
:
JOSHUA ADAM JANIS :
:
Appellant : No. 1566 EDA 2021
Appeal from the Judgment of Sentence Entered March 22, 2021
In the Court of Common Pleas of Chester County Criminal Division at
No(s): CP-15-CR-0000770-2019
COMMONWEALTH OF PENNSYLVANIA : IN THE SUPERIOR COURT OF
: PENNSYLVANIA
:
v. :
:
:
JOSHUA ADAM JANIS :
:
Appellant : No. 1564 EDA 2021
Appeal from the Judgment of Sentence Entered March 22, 2021
In the Court of Common Pleas of Chester County Criminal Division at
No(s): CP-15-CR-0002783-2018
COMMONWEALTH OF PENNSYLVANIA : IN THE SUPERIOR COURT OF
: PENNSYLVANIA
:
v. :
:
:
JOSHUA ADAM JANIS :
:
Appellant : No. 1565 EDA 2021
Appeal from the Judgment of Sentence Entered March 22, 2021
In the Court of Common Pleas of Chester County Criminal Division at
No(s): CP-15-CR-0003271-2018
J-A16006-22
BEFORE: McLAUGHLIN, J., McCAFFERY, J., and PELLEGRINI, J.*
MEMORANDUM BY McLAUGHLIN, J.: FILED OCTOBER 12, 2022
Joshua Adam Janis appeals the judgment of sentence following his
convictions for four counts of theft by unlawful taking, three counts of theft
by failure to make required disposition of funds, and 28 counts of theft by
deception – false impression.1 He challenges the sufficiency of the evidence
and the court’s denial of his motion to disqualify the prosecutor. We affirm.
The Commonwealth charged Janis, a former attorney, with the above-
referenced charges for failing to render services to his clients while receiving
money for those services. Before trial, Janis filed a motion to disqualify the
Chester County District Attorney’s Office. At a hearing in September 2019,
Janis argued that before his suspension from the bar, he was actively
representing defendants in criminal cases in Chester County, and there
allegedly were employees of the Chester County District Attorney’s Office that
he “could call, or probably will call, to refute a lot of allegations.” N.T.,
9/18/19, at 27. The assigned prosecutor, Attorney Ronald Yen, asked the
court to require Janis to give an offer of proof as it related to Janis potentially
calling him as a witness. Id. He said that the extent of his interactions with
Janis was “emails that I sent to Mr. Janis and he sent to me.” Id. He also told
the court, “I don’t think that what I would say would be favorable to their case
because basically what happened was he did nothing.” Id. at 28.
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* Retired Senior Judge assigned to the Superior Court.
1 18 Pa.C.S.A. §§ 3921, 3927, and 3922(a)(1), respectively.
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The court asked for an offer of proof, and defense counsel stated:
Your Honor, in discovery, there is substantial amounts of
discovery that were turned over to Mr. Janis prior to the
representation in that case. Additionally, Mr. Yen just said
he exchanged e-mails with my client on a number of
occasions, so he can get up there and say whatever he
wants to say, the simple fact of the matter is every time he
says something new it talks about what my client was doing
or not doing on the case. He was exchanging e-mails, he did
have discovery to review. He was preparing for the case. So
he can color it. And the problem, again, if you read through
the case law, your Honor, it’s not necessarily what actually
is going to happen, it’s the potential for what’s going [to]
happen. Would I call him as a witness in my case? Based on
what he just said to your Honor, yeah, I probably would
have to[.]
Id. at 30. The court responded that counsel would need to give a more specific
offer of proof. Id. at 31. It stated that rather than calling Attorney Yen as a
witness, Janis could introduce the emails between them. Id.
At a second hearing, in October 2019, counsel argued that some
prosecutors, including Attorney Yen, “have information that my client
performed work[.]” N.T. 10/28/19, at 7. The court replied that counsel could
introduce this evidence through other means, such as putting into evidence a
sentencing memorandum Janis prepared, cross-examining Commonwealth
witnesses, or presenting docket entries. See id. at 7-8, 9, 19. The court
denied Janis’ motion to disqualify the District Attorney’s office and ruled that
Janis could not call Attorney Yen as a witness.
The case proceeded to trial, and the trial court aptly summarized the
evidence as follows:
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In many of these cases, [Janis] told the individual clients
that their retainer would be placed in an escrow account and
that he would deduct from that account as services were
performed. Based on his representations, the clients gave
him money. Instead of putting the funds into escrow
accounts, he put the money into his firm’s general operating
accounts or into his own personal accounts. He also
promised a certain level of expertise and/or results in order
to get clients to give him money. The Commonwealth
showed that he repeatedly failed to do what was required of
him. In many cases, he did nothing at all. His pattern of
behavior in this regard established an intent on his part to
obtain money from clients without any intention of doing the
required work on the cases. After failing to do the work he
was retained to do, the clients asked for a refund. Most of
the clients never received a refund even though he either
did not work on their cases, or he did minimal work that did
not come close to depleting the retainer.
Rule 1925(a) Opinion (“1925(a) Op.”), filed 12/17/21, at 4.
The jury found Janis guilty, and the court sentenced him to an aggregate
term of 11 to 23 years’ incarceration followed by two years of reporting
probation. This timely appeal followed.
Janis raises two issues:
I. Did the trial court abuse its discretion in denying
[Janis’] motion to disqualify the assigned prosecutor
when that prosecutor was a witness to material facts
in the case?
II. Was the evidence insufficient to sustain several of
[Janis’] convictions for Theft By Deception – False
Impression?
Janis’s Br. at 5 (suggested answers omitted).
Janis first argues that the trial court erred by not disqualifying Attorney
Yen. He maintains that if the court had disqualified Attorney Yen, “[Janis]
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would have had the opportunity to question Mr. Yen about material details
that other potential witnesses would not have had knowledge of.” Id. at 8. He
claims that by denying his request, the court deprived him of his due process
rights and “compulsory process under the state and federal constitutions.” Id.
at 10. He also argues that because Attorney Yen should have been a defense
witness and was not disqualified, a conflict of interest existed. He directs us
to Commonwealth v. Eskridge, 604 A.2d 700 (Pa. 1992), and states that
“Pennsylvania courts have recognized that when a conflict of interest affecting
the district attorney exists, prosecution by that district attorney or any other
attorney in his office is barred regardless of whether actual prejudice can be
established.” Id. at 11. Janis claims “[t]here is nothing theoretical about the
conflict of interest in this case.” Id.
We review a court’s denial or grant of a motion for disqualification and
conflict of interest for an abuse of discretion. See Commonwealth v. Sims,
799 A.2d 853, 856 (Pa.Super. 2002). “[P]rosecution is barred when an actual
conflict of interest affecting the prosecutor exists in the case; under such
circumstances a defendant need not prove actual prejudice in order to require
that the conflict be removed.” Eskridge, 604 A.2d at 702. However, mere
allegations of conflicts of interest do not require the removal of a district
attorney. See Commonwealth v. Stafford, 749 A.2d 489, 494 (Pa.Super.
2000).
Before this Court and the trial court, Janis has failed to identify the
interest he believes Attorney Yen had in the case. Furthermore, he has made
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only a generalized claim that Attorney Yen would be a material witness. He
has not explained the exact information Attorney Yen allegedly had on which
he bases his claim of a conflict. Though he referenced emails between Attorney
Yen and himself, he did not specify the content of these emails beyond stating
that they were about a case for a client who was now a Commonwealth witness
in the instant case. Janis’ claims of a conflict of interest were merely
accusations.
Additionally, while he claimed that Attorney Yen had “information” that
Janis worked on some of his client’s cases, he has not made a sufficient offer
of proof to substantiate the claim. When given the opportunity to provide a
more detailed offer of proof, he mentioned a sentencing memorandum that
he completed for one of his clients. Moreover, Attorney Yen could not have
known or determined exactly what Janis did for any of his clients. Further, as
the trial court pointed out, Janis could have presented the “information” that
Attorney Yen allegedly had by other means not requiring Attorney Yen’s
testimony, such as offering the cited documents into evidence, or by
stipulation or cross-examination.
Janis’s citation to Eskridge is to no avail because Eskridge involved an
actual conflict of interest. See Eskridge, 604 A.2d at 701 (concluding “district
attorney whose private law partners represented the victims of the accident
in civil suits against the defendant had a clearly impermissible conflict of
interest prohibiting him from prosecuting the defendant criminally”). Here,
Janis has not shown an actual conflict.
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Janis also challenges the sufficiency of the evidence. He claims that the
Commonwealth failed to present sufficient evidence for five out of the 28
counts of theft by deception-false impression. He maintains that the
Commonwealth did not prove beyond a reasonable doubt that he intended to
create a false impression. He alleges that the evidence shows that he “did
perform, and did communicate with his clients.” Janis’ Br. at 18 (emphasis
removed). He argues that it is irrelevant if his clients were not satisfied with
the frequency of his communication with them, the results of their cases, or
the time it took to handle their cases. What is relevant, he claims, “is whether
the Commonwealth proved that [Janis] knew at the time he accepted money
that he would not perform work for these people.” Id. He further maintains
that this case is “even less factually compelling than what was held to be
insufficient” in Commonwealth v. Gallo, 373 A.2d 1109 (Pa. 1977). Janis’
Br. at 17.
When reviewing a challenge to the sufficiency of the evidence, our
standard of review is de novo. See Commonwealth v. Rushing, 99 A.3d
416, 420 (Pa. 2014). Our scope of review is limited to viewing all the evidence
of record, and all reasonable inferences from that evidence, in the light most
favorable to the Commonwealth as verdict-winner. Id. at 420-21.
Janis challenges the sufficiency of the evidence as it relates to five
victims and their testimony: Bonnie Kennedy, James Mendenhall, Andrew
Whittemore, Theresa Stiles, and Lawrence Desimone. However, the record
only contains the transcript testimony from Desimone. As such, we will only
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address the sufficiency challenge to this count. The challenges to the
remaining counts are waived.2 See Commonwealth v. Martz, 926 A.2d 514,
524–25 (Pa.Super. 2007).
Janis was charged with theft by deception under the first subsection of
the relevant statute, which provides:
A person is guilty of theft if he intentionally obtains or
withholds property of another by deception. A person
deceives if he intentionally:
(1) creates or reinforces a false impression, including false
impressions as to law, value, intention or other state of
mind; but 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.A. § 3922(a)(1). To sustain a conviction for theft by deception the
Commonwealth must show, among other things, the existence of a false
impression and that the victim relied upon the false impression. See
Commonwealth v. Lawson, 650 A.2d 876, 880 (Pa.Super. 1994).
Janis represented Desimone in a case involving Desimone’s father.
Desimone hired Janis because Janis’s website stated that he dealt with elder
law and Desimone thought Janis could help. N.T., 12/8/20, at 95-96.
Desimone testified that during his initial phone call with Janis, “I told him the
situation and he said he was experienced in these type of matters.” Id. at 96.
____________________________________________
2 Based on the parties’ briefs, Andrew Whittemore testified on December 1,
Theresa Styles testified on December 3, Bonnie Kennedy and James
Mendenhall testified on December 4, and Lawrence Desimone testified on
December 8, 2020. The record before this Court does not include transcripts
from the 1st, 3rd, or 4th of December.
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Desimone’s father lived with Desimone’s 89-year-old grandmother, who he
believed was not caring for his father properly. Id. at 95. Upon meeting Janis
in person, Desimone told Janis that his goal for the case was that his father
would live with him so he could take care of him. Id. at 98. Janis told him that
the case should be easy. Id. Desimone wrote a check to Janis for $2,500 for
his services. Id. at 100-01. He testified that Janis requested $3,000, so
Desimone gave him an additional $500 in cash. Id. at 102. As it related to
work that Janis completed on the case, he testified that Janis sent a letter to
his grandmother’s counsel and filed a petition in Orphans Court. Id. at 104,
107-08. After he hired him for the case, it was not easy to reach Janis via
telephone or text message. Id. at 108.
On one occasion, when he reached Janis, Janis told him that his father
needed a competency hearing. Id. at 109. He testified that a judge had not
yet heard the case. Id. at 110. Janis told Desimone that it would cost $1,000
more and that he might know of someone who could handle it. Id. Desimone
testified that the competency hearing never happened and that he was not
able to get in contact with Janis. Id. at 111. Janis eventually contacted him
and told him that he would need an additional $5,000. Id. at 112. Desimone
went to Janis’ office to reach him and learned that he had moved, without
providing forwarding information. Id. Desimone said he never determined
what happened with the case but that the matter was listed as “closed.” Id.
at 113. He also said Janis never gave him any money back. Id.
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We conclude that the Commonwealth presented sufficient evidence to
sustain the conviction. The evidence shows that Janis created a false
impression that he would be able to resolve Desimone’s case. His website
displayed that he had experience with elder law, and Janis ensured Desimone
that the case would be easy. Upon these assurances, Desimone paid Janis
$3,000 for his services. However, Janis’ work on the case was limited to
writing a letter to opposing counsel and filing a petition with the court. Janis
maintains, however, that his work refutes any argument that the evidence
was sufficient. In support of this argument, Janis cites Gallo.
In Gallo, our Supreme Court concluded that the evidence was
insufficient to sustain a conviction for theft by deception, where the only
evidence of the contractor’s intent was his failure to perform services. Gallo,
373 A.2d at 1111. Here, unlike Gallo, there is evidence of Janis’s intent
beyond his mere failure to complete the work. As Desimone testified, it was
difficult to contact Janis and he eventually stopped hearing from him
altogether. Despite the substantial fee he obtained, and his continued
requests for additional fees, Janis did minimal work, never completed achieved
the result Desimone hired him to achieve, and finally disappeared with no
forwarding information. The evidence was sufficient.
Judgment of sentence affirmed.
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Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 10/12/2022
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