J-S67027-14
NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
COMMONWEALTH OF PENNSYLVANIA IN THE SUPERIOR COURT OF
PENNSYLVANIA
Appellee
v.
LLOYD A. DECKER
Appellant No. 621 WDA 2014
Appeal from the Judgment of Sentence April 11, 2013
In the Court of Common Pleas of Crawford County
Criminal Division at No(s): CP-20-CR-0000973-2011
BEFORE: DONOHUE, J., MUNDY, J., and FITZGERALD, J.*
MEMORANDUM BY MUNDY, J.: FILED JANUARY 08, 2015
Appellant, Lloyd A. Decker, appeals nunc pro tunc from the April 11,
20131 aggregate judgment of sentence of four to eight years’ incarceration
after the trial court granted his post-sentence motions and imposed a new
sentence on three counts of theft by deception, one count of theft by failure
____________________________________________
*
Former Justice specially assigned to the Superior Court.
1
Appellant purports to appeal from the December 10, 2012 judgment of
sentence. The trial court, however, granted Appellant’s post-sentence
motions and modified Appellant’s sentence on April 11, 2013. Therefore,
Appellant is properly appealing from the April 11, 2013 judgment of
sentence. We have corrected our caption accordingly.
J-S67027-14
to make required disposition of funds, and two counts of securing execution
of documents by deception.2 After careful review, we affirm.
The trial court summarized the relevant facts of this case as follows.
[Appellant] is purportedly a developer who sold
lots to David and Jennifer Spahn (the “Spahns”) and
to Steven and Deborah Stegman (the “Stegmans”),
and contracted to sell lots to Thomas D. Kelly
(“Kelly”). … [The details of the transactions relating
to each purchaser are as follows.]
Spahns: Responding to [Appellant’s] Internet
advertisement for the sale of lots along French Creek
in Crawford County, Mr. Spahn arranged to meet
with [Appellant] at the site in early 2010. They
verbally agreed that [Appellant] would have some
trees removed, the land leveled, and a water well
installed. Mr. Spahn was assured that the electric
service would be available and, while the Spahns
initially did not need them, sewage facilities would
not be a concern because of the property’s remote
location in East Fairfield Township. The purchase
price was set at $15,000. Closing was held
sometime between January 19 and February 1,
2010, prior to which some tree removal and grading
had been done. A well was subsequently completed.
The local sewage enforcement officer (the
“SEO”), after inspecting the Spahns’ land on April 14,
2010, informed [Appellant] that the soils would not
pass a perk test, i.e., were unsuitable for any type of
in-ground septic system eligible for a permit.
[Appellant] never disclosed the SEO’s report to the
Spahns, nor did he offer to rescind the purchase and
sale transaction.
By check dated May 27, 2010, [Appellant] was
paid $1,850 for electric service, which was never
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2
18 Pa.C.S.A. §§ 3922, 3927, and 4144, respectively.
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provided. In the following months, [Appellant] twice
contacted Mr. Spahn and succeeded in interesting
him in the purchase of a pre-fabricated log cabin to
be built on the purchased lots. They met on August
5, 2010, and [Appellant] was paid $500 cash and
$3,000 by check, with the balance of the $7,500
purchase price paid by check dated August 13, 2010.
All checks were immediately cashed. [Appellant]
verbally contracted with Benjamin Byler (“Byler”) for
the installation of the cabin. No building permit was
ever sought, for which a sewage permit would have
been a prerequisite.
Byler substantially completed the portable
cabin, though at a height [Appellant] had specified of
about thirty inches above ground in violation of
zoning regulations; a minimum of eight and a half
feet was required because the property lay in a flood
zone. When the only payments Byler received from
[Appellant] were two checks, both of which bounced,
he removed the cabin. The Spahns were never
refunded any of the money they paid [Appellant] for
either the cabin or electric service, and their
telephone calls to him went unreturned.
Stegmans: Also responding to [Appellant’s]
Internet advertisements, Mr. Stegman met with him
on April 14, 2010 and discussed plans to build a
cabin on lots adjoining the Spahn property. They
executed a sales agreement ten days later, setting
the purchase price at $30,000 and appending a list
of improvements consisting of tree removal, leveling,
planting grass, and adding driveways and utilities,
with completion being “weather dependent.” The
specified utilities included “H2O, electric, and spring
water holding tank (1000 gal).” Closing was held on
May 15, 2010, and prior or subsequent thereto[,] the
property was leveled, grass planted, identified trees
cut down, graveled driveway added, and a sixty foot
well dug.
Electrical service was never established, nor
was a permitted sewage system ever installed.
[Appellant] knew from the SEO’s April 14, 2010
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report, which had evaluated the Stegman as well as
the Spahn lots, that an in-ground sewage system
was impermissible. He nevertheless later informed
Mr. Stegman that a stake indicated the location of
the spring water holding tank, without disclosing that
such a tank did not constitute an allowable septic
system.
Kelly: After also viewing an Internet
advertisement posted by [Appellant], Mr. Kelly met
with him on May 6, 2010 to evaluate the offered real
estate along French Creek as a site for a weekend
getaway cottage. [Appellant] suggested a fresh
water holding tank as an adequate sewer system,
which Kelly refused. They that day signed an
Agreement of Sale expressly contingent upon
approval for a sewer system costing no more than
fifteen thousand dollars.
The property was owned by W. L. Dunn
Construction Company (“W. L. Dunn”), from whom
[Appellant] represented that he would receive, as
developer, thirty percent of the $61,500 purchase
price. He verbally agreed to construct a road, clear
land for the dwelling, drill a well, bring in electricity,
and install a septic system. Kelly made a down
payment of $6,200, and between May 29 and
October 11, 2010, paid [Appellant] an additional
$23,750 with [Appellant] signing receipts for $8,200
that referenced a septic survey and septic materials.
No sewage permit was ever issued, although
soils there were determined to be suitable for an in-
ground septic system. The only development that
occurred on the property was some clearing and
bulldozing for a roadway. W. L. Dunn received none
of the sums paid by Kelly, and Kelly received neither
a deed to the property nor any refund. [Appellant]
avoided all of Kelly’s later attempts to contact him.
Trial Court Memorandum and Order, 4/11/13, at 1-4 (footnotes omitted).
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On November 23, 2011, the Commonwealth filed a nine-count criminal
complaint charging Appellant with three counts of theft by deception, two
counts of theft by failure to make required disposition of funds, three counts
of securing execution of documents by deception, and one count of
deceptive business practices. Appellant was arrested on December 1, 2011.
On August 20, 2012, following a non-jury trial, Appellant was found guilty of
three counts of theft by deception, one count of theft by failure to make
required disposition of funds, and three counts of securing execution of
documents by deception. Appellant was found not guilty of the two
remaining counts of theft by failure to make required disposition of funds
and deceptive business practices. On December 10, 2012, the trial court
imposed an aggregate sentence of four to eight years’ incarceration as well
as a total of $2,600.00 in fines and $74,350.00 in restitution. 3 Trial Court
Sentence Order, 12/10/12, at 1-2.4
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3
The trial court imposed consecutive terms of one to two years’
incarceration and a fine of $500.00 on each of the three theft by deception
counts, for an aggregated three to six years’ incarceration and a $1,500.00
fine. On the count of theft by failure to make required disposition of funds,
the trial court imposed a $500.00 fine and one to two years’ incarceration
consecutive to the convictions for the three counts of theft by deception. On
each securing execution of documents by deception count, the trial court
imposed a $200.00 fine and a term of three months to two years’
incarceration concurrent with the sentence for theft by failure to make
required disposition of funds, but consecutive to the sentences for theft by
deception. Thus the aggregate sentence was four to eight years’
incarceration plus $2,600.00 in fines. The trial court also ordered restitution
(Footnote Continued Next Page)
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On December 20, 2012, Appellant filed a post-sentence motion. On
April 11, 2013, the trial court, granted the motion in part, acquitting
Appellant of the charge of securing execution of documents by deception
regarding the Stegmans, and reducing the amount of restitution awarded to
the Spahns. Trial Court Memorandum and Order, 4/11/13, at 1-2. The trial
court denied Appellant’s remaining requests for relief. The April 11, 2013
order modified Appellant’s sentence accordingly.5 Id. at 15-16.
Thereafter, Appellant timely filed a notice of appeal on May 2, 2013.
On October 22, 2013, this Court dismissed the appeal for Appellant’s failure
to file a brief. Superior Court Order, 10/22/13, at 1.
On December 9, 2013, Appellant filed pro se a PCRA petition. The trial
court appointed counsel, and counsel filed an amended PCRA petition on
_______________________
(Footnote Continued)
in the amount of $29,950.00 to Kelly; $19,350.00 to the Spahns; and
$25,500.00 to Steven Stegman.
4
The trial court’s sentencing order is not paginated. For ease of reference,
we have numbered the pages of the sentence order sequentially.
5
The trial court did not modify its sentence on the three counts of theft by
deception, the one count of theft by failure to make required disposition of
funds, or two of the counts of securing execution of documents by
deception. The trial court vacated Appellant’s conviction for securing
execution of documents by deception, with respect to Steven Stegman, and
therefore eliminated that portion of Appellant’s sentence for an aggregate
sentence of four to eight years’ incarceration, plus $2,400.00 in fines. The
trial court also modified the award of restitution to $29,950.00 to Kelly,
$9,350.00 to the Spahns, and $25,500.00 to Steven Stegman, for an
aggregate total of $64,800.00.
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March 7, 2014. This amended petition requested permission to file a nunc
pro tunc appeal to this Court. On March 19, 2014, the trial court reinstated
Appellant’s right to directly appeal his judgment of sentence nunc pro tunc.
Thereafter, on April 14, 2014, Appellant timely filed the instant appeal. 6
On appeal, Appellant raises the following issue for our review.
I. [Whether the] Commonwealth failed to show
that the Appellant engaged in deception in the
sale of these lots[?]
Appellant’s Brief at 5.
Appellant’s issue raises a challenge to the sufficiency of the
Commonwealth’s evidence in support of his convictions. We begin by noting
that “[t]he standard we apply in reviewing the sufficiency of the evidence is
whether viewing all the evidence admitted at trial in the light most favorable
to the verdict winner, there is sufficient evidence to enable the fact-finder to
find every element of the crime beyond a reasonable doubt.”
Commonwealth v. O’Brien, 939 A.2d 912, 913 (Pa. Super. 2007) (citation
omitted). The determination of whether there is reasonable doubt is solely
for the fact-finder and we will not disturb its finding unless the evidence is
too weak and inconclusive to support any probability of fact.
Commonwealth v. West, 937 A.2d 516, 523 (Pa. Super. 2007), appeal
denied, 947 A.2d 737 (Pa. 2008). Moreover, “[t]he Commonwealth may
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6
Appellant and the trial court have complied with Pa.R.A.P. 1925.
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sustain its burden of proving every element of the crime beyond a
reasonable doubt by means of wholly circumstantial evidence.”
Commonwealth v. Perez, 931 A.2d 703, 707 (Pa. Super. 2007) (citations
omitted). “[T]he trier of fact, in passing upon the credibility of the
witnesses, is free to believe all, part, or none of the evidence.”
Commonwealth v. Rivera, 983 A.2d 1211, 1220 (Pa. 2009) (citation and
internal quotation marks omitted), cert. denied, Rivera v. Pennsylvania,
560 U.S. 909 (2010).
Appellant argues that the Commonwealth presented insufficient
evidence to show that he engaged in theft by deception, and securing
execution of documents by deception.7 Appellant’s Brief at 9-11.
Specifically, Appellant contends there is insufficient evidence to prove the
element of deception for the aforementioned charges. Appellant’s Brief at
12. Appellant asserts that he did not deceive Kelly because the installation
of a sewage system on Kelly’s lots did not exceed $15,000.00, which was
consistent with a term in the contract of sale with Kelly. Id. at 9. Further,
Appellant argues that the Spahns did not need a sewage system because
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7
We note that in his concise statement, Appellant did not contest the
sufficiency of the evidence for his conviction on count 5 for theft by failure to
make required disposition of funds. Therefore, we deem this issue waived
on appeal, and we will not address it. See Commonwealth v. Garang, 9
A.3d 237, 244 (Pa. Super. 2010) (concluding appellant must specifically
assert which convictions he is challenging in his 1925(b) statement to
preserve sufficiency of the evidence argument).
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they did not intend to erect a permanent structure on the lot. Id. at 10.
Moreover, Appellant contends that the Commonwealth did not prove that the
purchasers sustained a pecuniary loss as a result of the allegedly deceptive
practices. Id. at 10-11. Therefore, Appellant concludes, “there is
insufficient evidence of record to convict the Appellant of attempting to
deceive anyone regarding any of the lots.” Id. at 12.
The trial court authored a comprehensive 14-page memorandum that
properly disposes of each of Appellant’s claims. The trial court found that
there was ample evidence to sustain Appellant’s convictions for theft by
deception and securing execution of documents by deception. Trial Court
Memorandum and Order, 4/11/13, at 5-11. The trial court conducted a
thorough discussion of the deceptive conduct of Appellant regarding each
count of each crime for which Appellant was convicted, concluding the
evidence was sufficient to convict Appellant of each crime, except for one
count of securing execution of documents by deception regarding the
Stegmans.8 Id.
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8
In its brief, the Commonwealth addresses the Appellant’s claims solely as
weight of the evidence claims. Commonwealth’s Brief at 15. The
Commonwealth contends that was the standard of review in both the trial
court opinion and Appellant’s 1925(b) statement. The Commonwealth
claims Appellant’s sufficiency of the evidence challenges are waived because
said challenges are not raised in Appellant’s brief to this Court. We disagree.
Appellant’s post-trial motion raised the sufficiency of the evidence issue, his
1925(b) statement preserved it, and the trial court memorandum addressed
it. See Trial Court Memorandum and Order, 4/11/13, at 1 n.1 (noting,
(Footnote Continued Next Page)
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The trial court concluded that the evidence was sufficient to sustain
Appellant’s convictions on the three counts of theft by deception. Regarding
the Spahns, the trial court noted that even though the Spahns may not have
initially needed sewage facilities, the evidence established the Spahns would
not have purchased the lots if such facilities could not be added and
Appellant assured them that the facilities could be added. Id. at 5. The trial
court concluded that Appellant committed the crime of theft by deception
beyond a reasonable doubt “[b]y (1) creating or at least reinforcing th[e]
false impression [that the lots were amenable to an in-ground septic
system] and (2) intentionally failing to correct it [despite the SEO informing
Appellant the soils would not perk], thereby (3) obtaining $7,500 from the
Spahns ….” Id. Further, the trial court found Appellant committed theft by
deception in the sale of lots to the Stegmans when Appellant “(1) created
and (2) failed to correct the Stegmans’ false impression tha[t] his
improvements [of installing a spring water holding tank] would render their
lots suitable for building a cabin, thereby (3) obtaining from them $30,000
at closing.” Id. at 6. With respect to Kelly, the trial court observed
_______________________
(Footnote Continued)
“[t]he [post-trial] motion appears instead to be based upon insufficiency of
the evidence.”). Appellant raised the sufficiency of the evidence in his brief.
Appellant’s Brief at 2 (setting forth the scope of review and standard of
review for insufficiency). Appellant also raised the weight of the evidence in
his post-trial motions and 1925(b) statement, but has not challenged the
weight of the evidence on appeal. Therefore, we address Appellant’s claims
as sufficiency of the evidence challenges.
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Appellant’s “intentional failure to correct Kelly’s false impression that a septic
system would be installed … [led] Kelly to pay him $8,200 and thereby
satisf[ies] all the elements of theft by deception.” Id. at 7.
The trial court also found the evidence was sufficient to support
Appellant’s conviction of two of the three counts of securing execution of
documents by deception.9 The trial court explained that Appellant obtained
a total of $8,850.00 in checks from the Spahns by representing that a
prefabricated cabin would be erected on their property and by representing
that he would perform electrical service. Id. at 10. Appellant cashed the
checks from the Spahns, but did not use the proceeds to hire a contractor to
construct the cabin or to furnish electrical service. Id. Further, the trial
court concluded “that the evidence demonstrated beyond a reasonable doubt
that Kelly was deceived into paying $8,200.00 towards a septic system that
was never installed.” Id. at 11. Moreover, it is clear from the preceding
discussion that Appellant’s deceptive conduct directly caused a pecuniary
loss to the three purchasers. Therefore, viewing the evidence in the light
most favorable to the Commonwealth as the verdict winner, the evidence
was sufficient to sustain Appellant’s convictions. See O’Brien, supra.
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9
As previously noted, the trial court granted Appellant’s motion for
judgment of acquittal on count 8 for securing the execution of documents by
deception regarding the Stegmans.
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We have reviewed the record in its entirety and have considered the
merits of Appellant’s claims. Following our careful scrutiny of the certified
record, including the notes of testimony, the parties’ briefs, and the
applicable law, we conclude that the trial court’s factual findings were
supported by the record, and its legal conclusions were entirely proper. The
well-reasoned opinion of the trial court provides a detailed analysis of the
law of this Commonwealth as related to the facts of this case. The trial court
then wholly refutes each of Appellant’s arguments. Accordingly, we
conclude that the April 11, 2013 memorandum and order of the Honorable
John F. Spataro comprehensively discusses and properly disposes of
Appellant’s claims. Therefore, we adopt the trial court’s opinion as our own
for purposes of this appellate review, and affirm the April 11, 2013 judgment
of sentence.10
Judgment of sentence affirmed.
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10
We note that Appellant’s weight of the evidence claim and Appellant’s
reconsideration of sentences argument, addressed by the trial court on
pages 11-14 of its opinion, were not pursued by Appellant on appeal.
Therefore, we will not review those claims, and our disposition in this matter
pertains solely to Appellant’s challenges to the sufficiency of the evidence.
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Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 1/8/2015
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[N THE COURT OF COMMOl'( PLE;\~; OF CRA WFORD COUNTY, PENl\SYLVANIA
Criminal Division
Commonwealth of Pen nsylvania
VS. No. CR 973 - 201 I
LLOYD ALONZO DECKER, DcC.ndant
Douglas W FerlJl.l~'on. Esq., Ass/slant DistrIct Aflorney
Bruce A. Barrclf, Esq" First Assistant Public: Defender/or Dejimdant
MEMORA I~ DUM AND ORDER
Joho 11. Spataro, 1.
fhe Defendant. Lloyd Decker (" D!cker"), is purportedly a developer who sold lots to
David and Jennifer Spnhlllthe "Spahns") a,d to Steven and Deborah Stegman (the "Sregmans").
and contracted to sell lots to Thomas D. J< elly ("Kellyl'). He was convicted following a bench
trial of three counts of tlleft by deception, from the Spahns) Stegmans, and Kelly - relonies of me
third degree, 18 Pa.C.S. § 3922(a){3); one count of theft by fail ure to lUake reqllirt!d disposition
of funds reoeived, from Kell y - also n felo 'y of the Ihird deBTee, id. ~ 3927; and Ihrcc COlllUS of
securing execution of documents by deception, fro m the SPD:hns, Stegmans~ and Kelly - second
d~grcc misdemeanOI's, id. § 4 114. D~cker 'las moved post-sentencing for j\ldgmcnl of acquittal,!
or in the alternative. for a new trial, and if addition, for [econ~ideratjon of his sentences. Upon
review, we are convinced of the sufficicnc:' of the evidence to support ail but one of his criminal
convictions. Of the count of securing ext cution of documents: by deceiVIng the Stegmans, we
acquit Decker and modi fy our Sentence Order accordingly. We also reduce the JUllOllnt of
I We ctlnslrue Decker's "MOlion in Arrest of Judg;llent" as a mntwl) for judgment of acqultlol in cnnnmnity wilh
the Comment to Pa.R.Crfm 1'. 606, which limits thl! fonnC1'" to "raising r. Ghsllengc blCied un the court', JurisdictIon,
orl double jeopardy, or on Ihe stilll\tc of limirotlons " ' rhc motion nppeil,.ril g of tree removal, levcling, planting grass, and adding
driveways and uti lities, with completion being "weather dependent." The specified utilities
included " I-I ~O. electric, and spring water holr.1ing tank (1000 gal}." Clusing was held on May
15, 2010, and prior or subsequent thereto l1e property was leveled, grass plantell. identified trees
cuI down, graveled driveway added, and 3 iixty foot we ll dug.
Electrical serv ice was never eswblisbcd. nor was a permitted sewage system c\lcr
installed. Decker knew from the SEO's AJlril 14,2010 report, which had evaluated the Stcgman
as well as the Spahn lots , tnat an In-grounlt sewage system "vas impcnnissible. He nevertheless
later intbrmed Mr. Stegman that a stake illdicated the location of the spring water holding tank,
wi thout disclosing that slJc h a tank did not mnstillrte an allowable ~eptic sys1em.1
Kelly; After also viewing aD hue n et advertisement posted by Decker, Mr. Kelly met
with him on May 6, 2010 to evaluate the )fiered real estate along French Creek as 8 si te for a
weekend getaway cottage. DeckeT suggcs:cd a fresh water holding lank as an adequate sewer
a TIicre is considerable doubt a.. whether any tank had been installed.
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system, which Kelly refused. They that day signt:::d an Agreement of Sa.le. expressly coutingcm
upon approval for a sewer s),stem cQsting no more than fiftee n thousand doltars.'
The property was owned by W, ~, Dunn Construction Company ("W, L. Dunn''), from
whom Decker represented that he would receive, as developer. !.hirt)' percent of the $61 ,500
purchac;e price. He verbally agreed (0 construct 8 road, clear land for the dwdling. drill a well ,
bring in electricity. and install a septic lystem, Kelly made Ii down payment of $6,200, and
between May 29 and Octobcr II, 2.0"10, i=aid Decker an additional $23,750. with Decker !\igning
receipts for $8 1200 that referenced a septit: survey and septic materinls.
No sewage permit was ever issued. although soils tbere were determined to be suitable
for an in-gl'Ound septic system. The ani), development thal occurred on the property was some
clearing and bulldo~ing for Broadway. 'N, L. Dunn received none of the sums paid by Kelly,
and Kelly received neilher a deed to the J1roperty nor any refund. Decker avoided all of Kell y's
later altempts to contacl him.
Motion for Jud gm ent or Acquittal
Tht:ft by Deception
Theft by deception is defined as intemionally obtaining property of another by deception.
18 P3.C.S.A. § 3922, Deceplion ucuun upon failure 10 correct a false impresslOn that one
previously created OT reinforced . 18 Pa ( >S.A. § 3922(a)(3), The essential componenl:i of the
offense charged nre thus: (I) creating or Icinforcing a false i mpression~ (2) inh::ntiunally failing
to correct that impression; and (3) thereby obtaining property or another, See CommomvetJlth v
Fish"" 6R2 A.2d 811. 8 13-14 (Pn , Sup"" Ct.), appeal denied, 5.6 Pa, 691 (1996),
J It is UrtclCIli wh() Wil~ intended \0 benefit by the dallllr limitation .
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Co unt 2 (S l,ahns): The Spalms did not need sewage. facilities at the time of purchilSe, as
Uley planned Initially to park deceptIon thru !t~ him into the
criminal arcn""
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septic system. The SE~ placed the initial cost at between $16,000 and $24,000. Trial Tr. at 15-
J8. Tbis clearly was not an expense Mr. ~.palm ant ioipated.
Counl 3 (Stcgmans): Mr. Stegman communicated his building plans, and consequent
need for the installation oj' a st1'lic system, wben he first mel with Decker on April 14,2010.
Decker reportedly replied "that he w()uid put in the spring waler hQlrlinJ; tank and that was
okay." Stegman Trial "fr. al 8. He kn~w lr should have knowll, as a developer, that any building
permit would be conditioned bpon an acceptable -"ewer system . lnfonned by the SEa that no ill~
ground septic system could be permitted ,)II the Stegman lots, he nevertheless proceeded to close,
and Inter represented that such a .sys em had been installed as one of the a!9"ced upon
improvements.
Decker thus both (l ) created and (2) failed to correct the. Stegmans' false impression tha.n
his improvements would render their lnts suitable for building 8 cabill, thereby (3) obtaining
(rom them $30,000 at dosing. His intcllt to create that impression and to conceal its falsity aro
amply demonstrated by his informing the Stegmans that a stake indicated the location of the
system be supposedly had installcd,T Siegman Trial Tr. at 8-9; Trial Tr. at 136; cf Fisher, 682
;\.2d own (Count 5).11
Securing Execution of Documents by Deception
A person comm its the offense of securing execution of documents by deception "if by
deception he causes another to execute a ly instrument affecting Or purporting to affect or likely
to affect the pecuniary interesl of any pe: ·son." 18 Pa.C.S.A § 41 HI. Decker was charged with
II The. C01nmonwealih wa.c; not required to offer ttlSlirnony as to how Decker actually used those.: payments as his
own. Commonweallh v. Frftr. 470 A2d 1363, 13,7 (pa. Supcr. Ce. \983) (diclum); SI;I1! C,Qjlon, 8IJpf(J.
11 Acconllng IU the SED, Kelly's system would hove cost only S6,OOO. Trial Tr. 1l1 18
u Dcc:k~r'5 nrgume.nl mighl be. applicable: in re~~rd to the Spahns. from whom he wa, IIlso churgeJ with theft by
d«eplion (Count 2) as well as theft by [allure to make required distribution o[ funds recoi'led (Cuunt 4): The /iller
Count w"s b...ed UJ'O" Decker's failure . alt intemedlnry. to pall Byler any of the 5:7.500 Ihllilhe Spohns ll"id him fo'
the cabIn - the !lame S7,SOO that fonned the basis of his conviction on Count 1 (supra). Wt need n01 oonsider the
merits ofhi~ Ilrgument. however. beeause Decker was acqui tted ofColJol4.
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obtaining che ck payments oy deception from the Spahns and the Stegmans-, and obtaining
aontrilclS as well as check payments from ite preparation to create the
illusion that he was proceedIng with substantive lot improvements. Quite apart from the
diminution in value of their lots hecause the soils there wi ll not perk, the SpalUlS did not get 9
cabin, and the Stegmans did not get utilities for whid\ they paid. Kelly receh,ed nothing at all.
Wo discern no facts suggesting that juslicl! was denied, rather than servt'o. See Rivero, 983 A.2d
at 1225-26.
ReconsideratioD of Sentences
The provisions of 42 Pa.C.S.I\. ~ 9721(b) guide uS 111 reconsidering Ibe se.ntcnccs
imposed on Dt:cker:
The court shell follow th~ general prindple that the sentence imposed should call
fo r confinement that is consistent with the prolcction of the public., the gravity of
the offense as it relates to the impact on the life of the victim and on the
community. and the rehabilitativ«) needs of the defendant The court shall also
consider any guidelines for se ntencing adopted by the PeJUlsylvarua Commission
on Sentencing and taking effect J: ursuanl to sec tion 2 155 (relating to publication
of guidelines for sentencing).
We review again the prcwscntencmg Tepert (showing inter alia co:wictions in 2008 for criminal
mischief and in 2009 fo r receiv ing ::;tolen properlY), and we also take into account such factors us
the rmture of his crimes, his character, and his demeanor at trial and apparent lack of remorse.
&e genel'ully Commoflwea{ln v. Ems, 70) A.2d 948, 958 (Pa. Super. CL 1997).
On Counts 1. 2. and 3 of theft b:' deception, with an offense gravity score of four ') and
having a prior record score of two. Dl.Nkt:r was sentenced to incarceration for a minimum leon uf
twelve months. well within thc standard range sentence of three to fourteen months established
hy the guidelines. His sentence of incar.;eration for a minimum of twelve months on Count 5 is
I) With respect 10 CoUllts 1 and 3, {herb excccdlhS S25,OOO.OO, the .icntenclng guideline foml included wilh IRe rre-
:><:nlcncilt.g rcpon CtTOn1:luusIy indicateti an o(fcruc: gravity ~re or four inslea.j or .\\"'. r", which the S!lInd,.rd fIInat
sentence on a prior record score Or\y{o is a minimum of Iline 10 siXleen months, rather than Ihree.to fourlCtI1 months.
Deck:e r '~ mInimum sentence oj' twelve months was thererore at only the median level fo r those twO act\lal ocren.scs.
Circulated 12/16/2014 11:08 AM
also within the standard range of three to fourteen months for failure to make required
disposir ion of funds received .'6' Decker a so received.l standard ran~ sentence of three months
incarcerdtion on each of his conviction~ on Counts 6 1 7, and 8 of securing execution of
documents by deception. 11
These sentences in accordance with the guidelines recognize the gravity of his offensefi
and the impact on his multiple victims and, it i~ hoped, present an opportunity for rehabilitativ, fines and fees.
4) The Sentence Summary of the Court Order is accordingly modified to read as
follows:
• The foregoing represents n stale sentence of incarceration aggregated to 48 to 96
m on ths, with 118 days of cred it. The [ lefendan t is RRRJ eligible. having an RRRJ
minmuDi of 40 m o nth ~ . The aggregated lotal fin e is $ 2,400.00. The total restitution is
S 64,350.00.
5) Defendant's Post· Sentcnce Motion is in all other respects denied.
6) The Defendant is advised that he has a right to ft le an appeallO the Superior Court.
Any such appeal mUSt be filed within thiny (30) days from this dale or the:\e matters
become finaL
7) The Defendant has tbe right to assistance of coum:el in the preparation of an appeal if
he chooses to engage in his right to appeal. IfDcfendant cannot afford counsel of his
own, he has the right to app~ 1 In forma pauperis and couns~1 will be appointed [or
purpose ofthc appeal.
BY THE COURT,
(Signed: John F, Spataro, J.l
Judge