Com. v. Funari, J.

J-A06014-20
NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
COMMONWEALTH OF PENNSYLVANIA IN THE SUPERIOR COURT
OF PENNSYLVANIA
Appellee
v.
JOHN FUNARI
Appellant No. 654 EDA 2019
Appeal from the Judgment of Sentence entered January 30, 2019
In the Court of Common Pleas of Philadelphia County
Criminal Division at No: CP-51-CR-0003962-2017
BEFORE: STABILE, J., KING, J., and STEVENS, P.J.E.*
MEMORANDUM BY STABILE, J.: FILED JULY 13, 2020
Appellant, John Funari, appeals from the judgment of sentence the
Court of Common Pleas of Philadelphia County imposed on January 30, 2019.
Appellant argues that the trial court erred in not granting his post-sentence
motion on grounds of after-discovered evidence. We disagree. Accordingly,
we affirm.
The trial court summarized the relevant background as follows.
On April 24, 2012, Jeffrey Papa and Khalil Mir’s rental property,
located at 1938 Green Street, in the city and county of
Philadelphia, sustained damage from a wind storm. As a result of
the damages, the business partners came into contact with
Appellant [], a public adjuster. Mr. Mir was acquainted with
Appellant, and they were friends for several years. Appellant met
with Mr. Mir at the property, assessed the damages, and later
discussed the process of filing an insurance claim using a public
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* Former Justice specially assigned to the Superior Court.
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adjuster. Mr. Papa testified that he met with Appellant once with
his partner, Mr. Mir. During this discussion, Mr. Papa testified that
he, Mr. Mir, and Appellant agreed to an 80/20 split of funds once
the insurance company issued them a check.[fn 1] Mr. Papa further
testified that this agreement was reduced to writing, but never
received a copy of such agreement. This was the last time Mr.
Papa heard from Appellant. On December 12, 2012, after
attempting to get into contact with Appellant numerous times, Mr.
Papa decided to contact his insurance company. He learned that
a settlement check for $4,884.75 was already issued and mailed
to Appellant. Additionally, the insurance company received a
letter of representation signed by Mr. Papa and Mr. Mir, which
permitted Appellant to receive the check on their behalf. Again,
Mr. Papa continued to reach out to Appellant because he and Mr.
Mir had not received their share of the settlement. At the time of
the waiver trial, Mr. Papa had still never heard back from Appellant
and never received any funds from the settlement.
As it turns out, a check for $4,884.75 was indeed issued to
Mr. Papa, Mr. Mir, and Appellant, on October 1, 2012. On October
5, 2012, Appellant signed and deposited that check into his TD
account. However, on October 8, 2012, Appellant wrote Mr. Mir
the following email:
The claim was/is open, has been inspected, & last we
spoke I informed you that we are awaiting a check.
You are getting $3175 in your pocket, which is for the
interior damages/repairs.
We will address any & all discrepancies in an effort to
obtain additional funds.
In the future please save & forward any and all work
related emails to this: JohnAlbertPA@live.com.
Appellant further testified that he wrote a check out to Mr. Papa
and Mr. Mir but did not mention any effort to ensure the payment
was received and deducted from his TD account.
Despite multiple attempts to notify Appellant that Mr. Papa
and Mr. Mir never received a check for any amount, Appellant
failed to provide any portion of their share from the settlement of
funds.[fn 2]
At the waiver trial before Judge Mazzola, on September 25,
2018, Appellant was found guilty of failure to make required
disposition of funds under 18 Pa.C.S.A. § 3927. Subsequently,
both parties agreed to a stipulated trial for the remaining charges
of 63 [P.S.] § 1607 and 63 [P.S.] § 1602 not disposed of at the
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first trial date. In the interim, on December 4, 2018, Appellant
filed a post-verdict (sic) motion alleging that he found evidence –
that he was not privy to during his waiver trial – that would negate
the elements of theft by failure to make required disposition of
funds and establish Appellant’s innocence.
On January 30, 2019, [the trial court] heard and denied
Appellant’s post-verdict motion for a new trial. This appeal now
follows.
[fn1] The percentage split of funds to be received is contradicted. Appellant
testifies that it was not an 80/20 split As Mr. Papa claimed, but a 65/35 split.
[fn2] On March 1, 2013 and March 14, 2013, the Pennsylvania Insurance
Department notified Appellant, through certified and First-class mail, that there
were allegations that he failed to remit claim proceeds to Mr. Mir and Mr. Papa.
Trial Court Opinion, 9/26/19 at 1-3 (some footnotes omitted) (citations to the
record omitted).
Appellant raises two issues for our review. First, Appellant argues the
trial court erred in not granting his motion for a new trial on after-discovered
grounds. Second, Appellant argues that the trial court erred in not holding a
hearing on the above motion.
Pennsylvania Rule of Criminal Procedure 720, relating to post–sentence
procedures and appeal, provides in pertinent part: “A post–sentence motion
for a new trial on the ground of after–discovered evidence must be filed in
writing promptly after such discovery.” Pa.R.Crim.P. 720(C). The Comment
to Rule 720 states that:
[A]fter-discovered evidence discovered during the post-sentence
stage must be raised promptly with the trial judge at the post-
sentence stage; after–discovered evidence discovered during the
direct appeal process must be raised promptly during the direct
appeal process, and should include a request for a remand to the
trial judge.
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Pa.R.Crim.P. 720, Comment.
As noted above, the after-discovered evidence at issue here was
discovered and raised after trial, but before sentencing. Accordingly, the
matter was raised properly before the trial court. Additionally, there are no
questions about the promptness of the claim. Thus, we may address the
merits of Appellant’s post-sentence motion.
The parties and the trial court all agree that the pertinent test for
deciding whether Appellant is entitled to a new trial is well-established. For
convenience, as did Appellant and the trial court, we also rely on Castro.1
To obtain relief based on after-discovered evidence, Appellant must
demonstrate that “[t]he evidence: (1) could not have been obtained prior to
trial by exercising reasonable diligence; (2) is not merely corroborative or
cumulative; (3) will not be used solely to impeach a witness’s credibility; and
(4) would likely result in a different verdict.” Castro, 93 A.2d at 821 n.7
(citing Commonwealth v. Pagan, 950 A.2d 270, 282 (Pa. 2008)). “As this
test is conjunctive, failure to establish one prong obviates the need to analyze
the remaining ones.” Commonwealth v. Solano, 129 A.3d 1156, 1180 (Pa.
2015) (citing Pagan, 950 A.2d at 292-93). “Unless there has been a clear
abuse of discretion, an appellate court will not disturb the trial court’s denial
of an appellant’s motion for a new trial based on after-discovered evidence.”
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1 Commonwealth v. Castro, 93 A.3d 818 (Pa. 2014).
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Commonwealth v. Chamberlain, 30 A.3d 381, 416 (Pa. 2011). Finally, “the
proposed new evidence must be producible and admissible.” Id. at 414(internal quotations and citation omitted).
As noted above, the trial court allowed argument on Appellant’s motion,
at which Appellant was able to present a carbon copy of a check he mailed to
his clients as their payment on their insurance claim, the transmittal letter for
the check indicating that he made the required disposition by USPS mail, and
“substantial evidence why these documents were not available to him prior to
his trial.” See Appellant’s Rule 1925(b) Statement, 5/14/19.
According to Appellant, the copy of the check and the transmittal letter
proved that Appellant did in fact make the required disposition of funds to his
clients.2 The problem with Appellant’s argument is that there already was
evidence in the record that Appellant made payment.3 Thus, the copy of the
check and the transmittal letter, assuming they would be admissible,4 see
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2 In his motion for a new trial, Appellant listed several additional documents
as after-discovered evidence. Most of them, however, have no relevance to
the matter at issue here. As the Appellant’s Rule 1925(b) concise statement
and the statement of questions involved on appeal mention only those two
documents as relevant of our decision, we will limit our review to them.
3At trial, Appellant testified that a payment in the form of check from his TD
account was issued to Mr. Mir and Mr. Papa. See N.T. Trial, 9/25/19, at 71-
72.
4It appears the trial court treated Appellant’s after-discovered evidence as
admissible. However, the trial court did not provide any explanation as to
how it reached that conclusion.
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Chamberlain, 30 A.3d at 414, would only have corroborated his testimony.
In his brief, Appellant admits that the after-discovered evidence at issue here
is both corroborative and cumulative. Appellant’s Brief, at 13-14. However,
he also argues that the evidence is not “merely” corroborative and cumulative
“in the formulation of Castro”, but is in fact dispositive. Id.
The argument is without merit. First, it is unclear how the suggested
distinction (i.e., merely corroborative and cumulative vs. corroborative and
cumulative) helps Appellant. Second, and more importantly, even if
“dispositive,” the evidence still had to meet all the Castro prongs, as
acknowledged by Appellant. As explained, Appellant failed to meet the Castro
test. Accordingly, the trial court did not err in finding the proffer corroborative
and cumulative of the evidence already existing in the record. See Trial Court
Opinion, 9/26/19, at 6.
In its opinion, the trial court additionally found that the after-discovered
evidence would not likely result in a different verdict. Specifically, the trial
court noted:
If taken as true, that the evidence is what Appellant’s purports it
to be, it would not prompt a different verdict on retrial. The
evidence does not explain why Appellant failed to respond to Mr.
Papa months after Appellant claims to have sent the check. The
newly discovered evidence also does not negate that Appellant
was notified twice by the Pennsylvania Insurance Department in
March of 2013 because Mr. Papa and Mr. Mir had not received
their funds. Furthermore, Appellant was aware, through the
Department, of Mr. Papa’s multiple attempts to contact him, and
even more so by his own bank statements, that Mr. Papa and Mr.
Mir never received their funds.
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Trial Court Opinion, 9/26/19, at 6.
In response to the above analysis, Appellant argues that it is irrelevant
for purposes of determining criminal liability for theft by failing to make
required disposition of funds whether the recipient of the dispositions ever
received the funds. Appellant misreads the trial court’s analysis. The trial
court’s analysis is in fact focused on whether Appellant made the required
dispositions. To the extent the trial court notes that the recipients never
received payment from Appellant, this fact is mentioned only as a factor
undermining Appellant’s credibility regarding the alleged payment. We agree
with the trial court analysis and conclusions. We conclude, therefore,
Appellant failed to meet the Castro test.
Regarding Appellant’s claim that the trial court failed to hold a hearing
on his after-discovered evidence claim, we agree with the Commonwealth.
Appellant waived this claim by failing to include it in his Rule 1925(b)
statement. See Pa.R.A.P. 1925(b)(4)(vii) (“Issues not included in the
Statement and/or not raised in accordance with the provisions of this
paragraph (b)(4) are waived.”).
Judgment of sentence affirmed.
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Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 7/13/20
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