Com. v. Trumper, Jr., R.

J-S31014-15

NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA, IN THE SUPERIOR COURT OF
PENNSYLVANIA
Appellee

v.

RICHARD TRUMPER, JR.,

Appellant No. 1225 MDA 2014

Appeal from the Judgment of Sentence Entered June 20, 2014
In the Court of Common Pleas of Union County
Criminal Division at No(s):
CP-60-CR-0000030-2014
CP-60-CR-0000107-2013
CP-60-CR-0000108-2013
CP-60-CR-0000109-2013
CP-60-CR-0000110-2013
CP-60-CR-0000111-2013
CP-60-CR-0000112-2013
CP-60-CR-0000324-2013

BEFORE: BENDER, P.J.E., ALLEN, J., and WECHT, J.

MEMORANDUM BY BENDER, P.J.E.: FILED JUNE 26, 2015

Appellant, Richard Trumper, Jr., appeals from the aggregate judgment

of sentence of thirty (30) months’ to eight (8) years’ imprisonment, imposed

after he was convicted of numerous counts of theft by deception; bad

checks; deceptive business practices – sale of less than the represented

quantity of services; theft by deception – false impression; theft by failure to

make required disposition of funds; and deceptive business practices in the

above-referenced cases. Appellant challenges the sufficiency of the evidence
J-S310014-15

to sustain his convictions and challenges the sentence imposed by the trial

court. We affirm.

In 2012, Appellant was self-employed as a general contractor in

Mifflinburg, PA, trading as RTC Custom Home Improvements. N.T. Trial,

4/4/14, at 7. Appellant’s business engaged primarily in remodeling and

home improvement projects, as well as some new home construction. Id.

at 9. Following the ceasing of Appellant’s business operations in December

2012, and the filing of bankruptcy by Appellant and his wife, multiple

criminal charges were brought against Appellant under eight different docket

numbers, which were later consolidated by the court for trial. Appellant’s

Brief, at 6.

A three (3) day non-jury trial commenced on April 3, 2014.

Appellant was found guilty of all charges and was sentenced on June 20,

2014, to thirty (30) months’ to eight (8) years’ imprisonment. Trial Court

Opinion (“TCO”), 11/7/14, at 1 (unnumbered page). No post-sentence

motions were filed by Appellant. Id. On August 1, 2014, the trial court

issued a scheduling order directing Appellant to file a statement of errors

complained of on appeal pursuant to Pa.R.A.P. 1925(b), within twenty-one

(21) days of the date of said order. As the trial court recognized in its

1925(a) opinion, Appellant’s 1925(b) statement was untimely filed on

September 5, 2014. However, the trial court proceeded with filing a 1925(a)

opinion in which it addressed the issues raised by Appellant at length.

Because the trial court has addressed the merits of the issues raised on

-2-
J-S310014-15

appeal, we will overlook the waiver of Appellant’s claims due to the untimely

filing of his 1925(b) statement, based on our authority in Commonwealth

v. Burton, 973 A.2d 428 (Pa. Super. 2009), where we stated, “if there has

been an untimely filing, this Court may decide the appeal on the merits if the

trial court had adequate opportunity to prepare an opinion addressing the

issues being raised on appeal.” Id. at 433.

Appellant raises the following questions on appeal for our review:

1. Whether the trial court erred in finding that there was
sufficient evidence to convict Appellant of Bad Checks and
Theft by Deception arising out of Payroll Checks issued to Mr.
Hook and Mr. Smith?

2. Whether the trial court erred in finding that there was
sufficient evidence to convict Appellant of Deceptive Business
Practices, Theft by Deception, and Theft by Failure to Make
Required Disposition of Funds arising out of the Boop home
construction contract?

3. Whether the trial court erred in finding that there was
sufficient evidence to convict Appellant of Bad Checks for the
check issued to Signature Stone?

4. Whether the trial court erred in finding that there was
sufficient evidence to convict Appellant of Deceptive Business
Practices and Theft by Deception arising out of the Bennett
home construction contract?

5. Whether the trial court’s sentence structure should be
remanded in the event that the controlling sentences on the
Boop and Bennett matters are reversed.

Appellant’s Brief, at 9.

Before we may address Appellant’s issues, we are compelled to note

that Appellant failed to properly preserve his sufficiency issues, due to a lack

of specificity in his 1925(b) statement. We have previously stated:

-3-
J-S310014-15

[W]hen challenging the sufficiency of the evidence on appeal, …
Appellant’s 1925 statement must “specify the element or
elements upon which the evidence was insufficient” in order to
preserve the issue for appeal. Such specificity is of particular
importance in cases where … Appellant was convicted of multiple
crimes[,] each of which contains numerous elements that the
Commonwealth must prove beyond a reasonable doubt.

Commonwealth v. Gibbs, 981 A.2d 274, 281 (Pa. Super. 2009) (quoting

Commonwealth v. Williams, 959 A.2d 1252, 1257 (Pa. Super. 2008))

(citations omitted).

Appellant’s 1925(b) statement merely states the following challenge to

the sufficiency of the evidence regarding the relevant case numbers: “The

verdict was not supported by sufficient evidence.” Pa.R.A.P. 1925(b)

Statement, 9/5/14, at 1-2 (unnumbered pages). Based on our reasoning in

Williams, which was reiterated in Gibbs, we are compelled to conclude that

Appellant’s Rule 1925(b) statement is inadequate to preserve his sufficiency

claims. Appellant was convicted of multiple offenses, each with multiple

elements, yet his Rule 1925(b) statement does not specify which element(s)

of his convictions the Commonwealth failed to prove. Instead, Appellant

merely states, in boilerplate fashion, under each case number in which he is

challenging the sufficiency of the evidence that “[t]he verdict was not

supported by sufficient evidence.” Id. Based on the foregoing, we conclude

that Appellant’s sufficiency claims are waived.

Nevertheless, even if Appellant had properly preserved the claims he

raises herein, we would conclude that the issues are without merit. We have

reviewed the certified record, the briefs of the parties, the applicable law,

-4-
J-S310014-15

and the thorough and well-crafted 32-page opinion of the Honorable Louise

O. Knight, S.J., of the Court of Common Pleas of Union County, entered

November 7, 2014. We conclude that Judge Knight’s extensive, well-

reasoned opinion accurately disposes of the issues presented by Appellant.

Accordingly, had Appellant’s claims not been waived, we would adopt Judge

Knight’s opinion as our own and affirm the judgment of sentence on that

basis.

Judgment of sentence affirmed.

Judgment Entered.

Joseph D. Seletyn, Esq.
Prothonotary

Date: 6/26/2015

-5-
 Circulated 06/15/2015 01:35 PM

NOTICE OF ENTRY
Fl LEO
n
..· ! •,,i ,,\.11 c iJ r
VI''·JI TI '(
, f'I·,

2ug NOV - 7 PM li: 21~

COMMONWEALTHOF PENNSYLVANIA: IN THE COURT OF COMMON PLEAS
OF THE 17TH JUDICIAL DISTRICT
-vs- OF PENNSYLVANIA
UNION COUNTYBRANCH
RICHARD TRUMPER, JR., CRIMINALDIVISION
Defendant NO. CP-60-CR-107-2013
NO. CP-60-CR-108-2013
NO. CP-60-CR-109-2013
NO. CP-60-CR-110-2013
NO. CP-60-CR-111-2013
NO. CP-60-CR-112-2013
NO. CP-60-CR-324-2013
NO. CP-60-CR-30-2014

OPINION PURSUANT TO PA.R.A.P. 1925(A)

Knight, S.J. - November 6, 2014

In response to the Defendant's "Statement of Issues Complained Of on

Appeal"! we respectfully submit to the Superior Court the following opinion

pursuant to Pa.R.A.P. 1925(a}.

1. Background.

On April 3, 2014 the Defendant went to trial before the Court on eight

different cases. The trial extended over three days -April 3, 4, and 22, 2014.

We found the Defendant guilty of all charges. No post-sentence motion was

filed. We issued a Scheduling Order directing the Defendant to arrange for the

preparation of a trial transcript and to file a Statement of Errors within 21 days

1 The correct term under PaR.A.P. 1925(b) is now "statement of errors."
 Circulated 06/15/2015 01:35 PM

of the date of entry of the Scheduling Order (on August 1, 2014). The

Defendant filed an untimely Statement of Errors on September 5, 2014 and by

September 19, 2014 record due date in the Superior Court still had not taken

steps to order and arrange for the filing of any transcripts. The trial transcripts

were finally paid for, lodged and filed on October 2, 2014, and the sentencing

hearing transcript was paid for, lodged, and filed on October 13, 2014. We

advised the Superior Court of the delays and were told that we should

nonetheless proceed to file our l 925(a) Opinion as soon as possible. Thus, we

are now submitting our l 925(a) Opinion as soon as we could expeditiously

prepare it.

In his 1925(b} Statement the Defendant has raised claims of error in

regard to sufficiency of the evidence, amendment of the Information, and

sentencing. We respond to the Defendant's claims in this Opinion,

2. Sufficiency of the Evidence.

The Defendant has raised a sufficiency of the evidence challenge to

several of the cases brought against him. Under Pa. R.Crim.P. 606(A)(7)a

defendant may challenge the sufficiency of the evidence for the first time on

appeal.

We begin our analysis by setting forth the standard for evaluation of a

sufficiency of the evidence claim:

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
2
 Circulated 06/15/2015 01:35 PM

most favorable to the verdict-winner. Commonwealth
u. 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 defendant's 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
the evidence.

Commonwealth u. Kerry, 906 A.2d 12371 1240 (Pa.Super. 2006).

Case No. CPw60-CR-107-2013 - Victim Bradley Hook

The Defendant was charged with, and found guilty of, three offenses in

regard to a victim named Bradley Hook: Count 1 - theft by deception, violation

18 Pa.C.S.A. §3922(a)(l); and Counts 2 and 3 - bad checks, violation 18 Pa.

C.S.A. §4105(a)(l). Addressing Count 1, a person is guilty of theft by deception

if he/she intentionally holds or obtains property by deception, There are three

elements to the crime that must be proven by the Commonwealth:

3
 <
/ Circulated 06/15/2015 01:35 PM

(1) That the defendant intentionally withheld property of another;

{2) That the property was the property of another person;

(3) That the defendant created a deception with regard to the
property, namely that the defendant obtained or withheld the
property by creating or reinforcing a false impression as to law,
value or other state of mind. The deception or false impression
must be relied upon by the victim.

The evidence showed that the Defendant asked an agent of AFLAC

insurance company to visit his business to speak to employees about obtaining

insurance through a payroll deduction. Notes of Testimony (hereinafter "N.T.")

4/4/14 at 37. Hook signed the forms necessary to permit the deduction in the

amount of $30.66 per paycheck. Commonwealth Exhibit No. 13.2. The

deductions began on October 26, 2012 and lasted over approximately four

paychecks. In March 2013 and again in June, Hook received letters from

AFLAC notifying him that no premium payments had been received in the

contract time frame and that therefore, the insurance contract was cancelled,

effective November 12, 2012. The letter further advised that a refund check

had been sent to the employer. Commonwealth Exhibits No. 13.3. and 13.4.

Hook never received any reimbursement from the Defendant for the

deductions. The AFLAC agent, Todd Day, testified that AFLAC never received

the first month's premium and that later the Defendant attempted to make a

last minute payment of the premiums. N.T. 4/4/14 at 57-58. Day tried to

reach the Defendant by phone to work out the payment situation so as to save

the policies for Hook (and Brett Smith, another employee victim), but had great

difficulty reaching him in time, and was initially told by the Defendant that he

4
 Circulated 06/15/2015 01:35 PM

could not talk to the agent because he had filed for bankruptcy. The premiums

not only were late but the Defendant did not send enough money to cover the

full amount due. N.T. 4/4/14 at 60. Accordingly, the policy lapsed and any

monies paid went by to the Defendant. N.T., 4/4/14 at 64.

The Defendant's explanation was that his intent was to help out his

employees and their families by offering the insurance program, that he had no

intent to defraud his employees. He also stated that he never got any money

backfromAFLAC. N.T. 4/4/14at 196-197.

The Defendant's defense posture throughout the trial was that he was a

decent, honorable fellow but a lousy businessman, and that all of the

incriminating evidence narrated by the Commonwealth's witnesses was

explainable as the result of his poor business decisions. In regard to Hook, he

testified that all he wanted to do was help his employees and «their kids." N.T.

4/4/ 14 at 197.

It should be noted that we found all of the Commonwealth's witnesses to

be highly credible, and as to virtually every item of testimony where the

Defendant contradicted the witnesses of the Commonwealth to portray himself

innocently, we did not find the Defendant credible. In addition, his credibility

is affected by the fact that he has prior criminal convictions for felony theft by

deception and bad checks. N.'f. 4/4/ 14 at 198 and 199. Pa.RE. 609(a).

While it may be true he started his business with the best of intentions, when

he slid into a black hole of cost overruns, his intention turned to self-

preservation at any expense. We had no difficulty concluding that the

5
 Circulated 06/15/2015 01:35 PM

Defendant committed a theft by deception when he failed to make timely

payment to AFLAC of the premium monies he took from Hook's paychecks

when Hook had the expectation the funds would be sent to AFLAC in a manner

to insure that he had a valid contract of insurance.

Counts 2 and 3 of the Hook case involved two payroll checks issued to

Hook as an employee of the Defendant. The offense of bad checks requires

proof beyond a reasonable doubt of three elements:

(1) That the defendant issued a check in a certain amount;

(2} That the defendant knew that the check would not be
honored by the drawee bank;

(3) That the check was of a certain dollar threshold
amount specified in the statute (in this case the amount
was between $200 and $500). ·

To summarize the presumptions applicable to this case under 18 Pa.

C.S.A. §4105(b), the defendant's knowledge that the check would not be paid

when he/ she issued it is presumed when payment was refused by the drawee

upon the check being presented within 30 days after issuance (an "NSF' stamp

establishes a drawee's refusal to pay based on lack of funds); the defendant

received notice of the refusal (certified mail permits a finding of notice); and the

defendant fails to make good on the check within 10 days after he/she received

notice of refusal.

In support of the charges on Counts 2 and 3, Hook testified that the

Defendant issued him two payroll checks - one on 11 /21 / 12 and a second on

11/30/ 11, both of which generated nonsufficient fund letters from his bank

within 30 days of each check's issuance. N.T. 4/4/04 at 32. Commonwealth
6
/ Circulated 06/15/2015 01:35 PM

Exhibits 13 and 13.1. Hook confronted the Defendant about the nonpayment.

The Defendant promised to "make good" on the checks but did not immediately

do so. Hook then sent the Defendant a certified letter about the nonpayment.

Although not positive, Hook believed the Defendant contacted him on the

eleventh day after he sent the certified letter, and Hook was paid. Hook's lack

of certainty was removed by the testimony of Brett A. Smith, another of

Defendant's employees, whose bad check narrative mirrored that of Hook.2 N.T.

4/4/ 14, at 48. Smith confirmed that both he and Hook followed the same
steps of sending the certified letters. Smith testified that the Defendant

contacted him and Hook on the tenth day after the letters were sent, and that

they met with the Defendant on the eleventh day and were paid.

At trial the Defendant contended that there were two deficiencies in

the Commonwealth's evidence. First that the pay checks were not. signed by

the Defendant, and therefore could not be attributed to the Defendant. The

first payroll check was signed by his wife and the second check by the

Defendant's brother-in-law. We find this defense to be meritless. The checks

were issued for pay due Hook and were marked as payroll checks. The checks

bore the Defendant's business name. Hook further testified that the
Defendant's wife did all the office paper work. and had signed payroll checks in

the past. N.T. 4/4/ 14 at 42. He identified the brother-in-law as the foreman of

the business. N.T. 4/4/ 14 at 42. The Defendant's wife, Debi Trumper, later

testified that she ran the Defendant's office and paid the bills. N .T. 4 / 4 / 14 at

2 Brett Smith's case is CP-60-CR-110-2012 and is discussed below.
7
 Circulated 06/15/2015 01:35 PM

245. She also testified that the brother-in-law had authority to issue checks

when the Defendant or she was away from the office for anyextended period of

time N.T. 4/4/ 14 at 247.

The Defendant also contends that Hook's testimony was uncertain as to

whether he was paid on the eleventh day after the certified letter notice. As we

noted above, Smith confirmed the date of the payment as the eleventh day.

Additionally, the evidence showed that Smith contacted the Defendant

immediately after receiving the bank letters and made the Defendant aware of

the lack of funds, N.T. 4/ 4/ 14 at 47. Hook testified that he and Smith took

their bank letters to the Defendant with the returned checks and went to see

the Defendant. N.T. 4 / 14 / 14 at 33. Obviously at that meeting the Defendant

has "oral" notice that the checks were not honored by the bank, and he did not

make good within 10 days of that meeting. The certified letters were sent after

that meeting so it is clear that by the time of the tenth or eleventh day after the

certified letters were sent, the Defendant had much more than 10 days notice

of the nonsufficient funds. We had no difficulty in finding the Defendant guilty

of Counts 2 and 3.

Case No. CP-60-CR-110-2012 - Victim Brett Smith

This case involved a victim name Brett Smith with charges identical to

those involved the victim Brad Hook, discussed immediately above. The proof

was the same and the Defendant's defenses the same. For the same reasons as

we found the evidence sufficient to convict the Defendant in Hook's case, we

made the same finding in Smith's case.
8
 Circulated 06/15/2015 01:35 PM

Case No. CP-60-CR-108-2013 -Victim Jonathan Boop

There were three charges against the Defendant: Count 1 - deceptive

business practices - sale of less than the represented quantity of services,

violation 18 Pa. C.S.A. §4107(a}(2); Count 2 - theft by deception - false

impression, violation 18 Pa C.S.A.§3922(a)(l); and Count 3 - theft by failure to

make required disposition of funds, violation 18 Pa.C.S.A.§3927(a). We found

the Defendant guilty on all three counts. The crime of deceptive business

practices has two elements:

(1) That the Defendant knowingly and intentionally in the
course of business offered for sale less than the quantity of
services specified;

(2) That the amount involved of the goods was in excess of a
certain dollar amount {as specified in the statute).

The evidence showed that the Defendant was hired by Jonathan Boop to

build him a new home, and that the Defendant took as advances from a

construction loan some $44, 700 for his personal benefit without paying the

money to the subcontractors involved in the construction work. The contract

document, drafted by the Defendant (Commonwealth Exhibit 3), specified on

the first page that RTC Custom Homes would perform all labor necessary for

the completion of the specified work. The signature page stated that all

payments "are to be determined prior to commencement of work" and that all

payments were to be made to the Defendant's business, RTC Custom Homes

and Improvement. The payment schedule, Commonwealth Exhibit 3.1,

detailed the monies due for each stage of work and stated further that all

payments were to be made prior to the commencement of each phase. Thus,
9
 Circulated 06/15/2015 01:35 PM

clearly the Defendant had contractual responsibility for receipt of all monies

and.payment of all subcontractors.

The evidence showed that six different subcontractors were not paid the

full amount due them. See Commonwealth Exhibit No. 10.a Reviewing the

evidence in order of the listed subcontractors in the Exhibit, first as to

. Signature Stone, Jeffrey Hess, President of Signature Stone, testified that he

issued his invoice on November 21, 2012 for a total payment of $6,350 with

$3,000 to be provided as a down payment. The Defendant's down payment

check dated November 13, 2012 was returned for nonsufficient funds on

November 29, 2013. N.T. 4/3/14 at 15-17. Upon receiving the bank notice,

Hess tried to get hold of the Defendant who was did not return Hess's phone

call and made no contact with Hess. The Defendant's phone was shut off. N.T.

4/3/ 14 at 17. Signature Stone completed all of the stone work by the time of

the returned check. On December 3, 2012 Hess sent a certified letter notice to

the Defendant of the returned check and demanded payment. Commonwealth

Exhibit 1.3 and 1.4. Hess did receive the $3,000 some time in February 2013.

But has never received the balance due of $3,350. N.T. 4/3/ 14 at 21.

Next to testify was Dwayne Gessner, owner of Gessner Excavating. The

Boops arranged for Gessner to perform the excavating for their house, but the

Defendant told Gessner he would be paying all of the bills. The proposal for

work was $25,800. Commonwealth Exhibit No. 2.1. A first bill was paid by the

Defendant on August 20, 2012. A second bill was issued for further work on

3It should be noted that defense counsel stated at trial that the Defendant was not disputing
any of the subcontractor claims of nonpayment. N.T. 4/3/ 14 at 117.

10
 Circulated 06/15/2015 01:35 PM

August 27, 2012. Commonwealth Exhibit No. 2.2. The bill remained unpaid

until October 3, 2012. Commonwealth Exhibit No. 2.3. N.T. 4/3/14 at 29.

During the period between August 27 and October 3 Gessner repeatedly tried

to get in touch with the Defendant, with no success. He finally found the

Defendant at his shop who said he did not have the money to pay Gessner.

N.T. 4/3/14 at 30. Another invoice was issued on October 3, 2012 for

$11,487.89 which was never paid. N.T. 4/3/ 14 at 32. An additional bill was

issued on November 3, 2012 with accumulated interest. That was not paid.

Another billing with additional interest was issued on December 3, 2012. No

payment was received. Commonwealth Exhibit No. 2.6. N.T: 4/3/ 14 at 33. In

his efforts to get paid, Gessner had difficulty finding the Defendant. N.T.

4 /3/ 14 at 36.
Allen Long, owner of Al's Drywall, testified that the Defendant contracted

with him to the drywall work on the Boop home. Work began in October 2012.

The agreement was for Long to be paid one half when work began, and the

balance when completed. Although he billed the Defendant on November 8,

2012 for the balance of $2,838.99, he was never paid. Commonwealth Exhibit

No. 5; N.T. 4 /3/ 14 at 114-115; testimony of Brenda Long, wife of Allen Long

and Al's Drywall office manager, N.T. 4/4/14 at 119.

Steve Miller, the masonry contractor on the Boop home, submitted to the

Defendant an estimate of work on July 14, 2012 in the amount of $20,825.10.

Although Miller received some money, he never received payment on his final

billing dated October 11, 2012 in the amount of $6,068. N.T. 4 /3 / 14 at 122.

11
 Circulated 06/15/2015 01:35 PM

Like the other subcontractors, he made efforts, for about a week, to reach the

Defendant about the unpaid bill. Finally, he reached the Defendant by phone

but no payment was forthcoming. N.T. 4/3/14 at 124.

Vic Sprenkel, a partner in Zechman Well Drilling, testified to a similar

story. He contracted with the Defendant to drill a well and install a water

pump for the Boop home. The well was drilled on September 11, 2012 and a

bill issued to the Defendant for $2,527,50 on the same date. Commonwealth

Exhibit No. 7. The bill was never paid. Another bill was issued on October 16,

2012 for $1802·, after the pump was installed, which was never paid as well.

Commonwealth Exhibit No. 7.1. N.T. 4/3/14 at 125-128.

Rodney Gessner, owner of Gessner's Plumbing, testified to his billing

problems with the Defendant. He stated that he broke his billing down into

four draws of $6,225 each. Commonwealth Exhibit No. 8. The first

installment was paid in full. N.T. 4/3/14 at 131. The Defendant was billed for

the second installment on September 1, 2012 for $6,225. Commonwealth

Exhibit No. 81. A partial payment of $3,500 was received on September 24,

2012. Commonwealth Exhibit No. 8.1. Again the Defendant was billed for the

balance and on October 9, 2012 another partial payment of $2,500 was

received. Commonwealth Exhibit No. 8.2. A balance of $225 remained.

Because Gessner was having trouble getting his full payment from the

Defendant, Gessner went to the Defendant and had him sign the initial

estimate agreeing to make the payments described on the original estimate.

N.T. 4/3/14 at 131. On September 27, 2012 Gessner then billed for the second

12
 Circulated 06/15/2015 01:35 PM

draw of $6,225. Two checks each in the amount of $3,000 were received from

the Defendant on November 14, 2012. One check had a note saying it could be

deposited on November 16, 2012 and the other with a note requesting the

check be held until November 19, 2012. After depositing per the instructions,

one of the checks was returned to Gessner by the bank noting insufficient

funds. Commonwealth Exhibit No. 9.3 Gessner sent the Defendant a certified

letter notifying him of the insufficient funds. Commonwealth Exhibit No. 9.5.

On October 11, 2012 a bill was issued for the third draw upon completion of

work - $6,225. Commonwealth Exhibit No. 8.3. No monies were received for

· that work. N.T. 4/3/ 14 at 137.

Coupled with the testimony of the unpaid subcontractors was the

testimony of Jonathan Boop, the homeowner. He testified to the identity of the

various contract documents. Commonwealth Exhibits No. 3 and 3 .1; N.T.

4/4./14 at 41-48. Work began on July 2012. Boop explained that the

payment schedule process was that the Defendant would let him know when

each phase of work was completed, and make a request for payment. The first

phase of $75,000 was paid by the Boops before work began. N.T. 4/4/ 14 at

48. The second phase payment of $75,000 was paid through the construction

loan lending bank, West Milton State Bank. Commonwealth Exhibits No.'s 3.2

and 3.3. When it came to payment of Phase 3, the Defendant requested

payment of half in advance of the completion of work so he could pay for

materials. N.T. 4/4/ 14 at 50. On October 9, 2012 the Defendant requested

payment of the second half of Phase 3. Commonwealth Exhibit No. 3.6. At

13
 Circulated 06/15/2015 01:35 PM

about that time Dwayne Gessner of Gessner Excavating notified the Boops that

he had not been paid for his sand mound work. N.T. 4/4/ 14 at 52. This was a

critical moment because the balance of the Phase 3 money was only to be paid

upon completion of the sand mound work. The Boops spoke to the Defendant

who assured them that Gessner would be paid. 4/4/ 14 at 52. The Defendant

allayed the Boops concerns by assuring them several times that he was going

to make sure every subcontractor would be paid. N.T. 4/4/14 at 53. The

Boops authorized the bank to release the second $25,000 upon the

Defendant's assurance that Gessner would be paid.

By letter dated October 23, 2012 the Defendant requested a revision of

the payment schedule to release one half of the fourth phase payment.

Commonwealth Exhibit No. 3.8. Because Gessner had still not been paid, the

Boops went to the lending bank on October 23, 2012 for a meeting with the

Defendant and the bank officer, Dennis Keefer. N.T. 4 /4 / 14 at 56. At that

meeting the Boops and Keefer inquired why Gessner had not been paid. The

Defendant's response was to give repeated assurances that Gessner would be

paid and that all of the contractors would be paid. N.T. 4/4/14 at 56. At the

meeting the Defendant also explained that he wanted the advance on the

fourth phase of paymen t so he could get the stone on the house before the

weather turned cold, that he wanted to keep the project moving forward. N.T.

4/4/ 14 at 57. Boop and Keefer proposed that the bank take the invoice for the

stone and pay it directly. The Defendant responded that such an arrangement

14
 Circulated 06/15/2015 01:35 PM

was not possible because he was the authorized dealer for the stone and only

he could buy the stone. N,'T. 4/4/ 14 at 57 and 62.

At the meeting the Defendant insisted that everyone else had been paid

up to that point (N.T. 4/4/at 61), a clear lie since several of the contactors had

already testified to having not been paid by the Defendant at that point in time

- October 23, 2012.

On November 9, 2012 the Defendant submitted another request for

payment, calling it the "remainder of the third payment," when in fact it was

the balance of the fourth installment. A meeting took place at the bank in

regard to the payment request. The Defendants wife attended, but the

Defendant did not because he was on a hunting trip. N.T. 4/4/ 14 at 63-64.

The Boops became further concerned when there was a slowdown on the

work. The Defendant and the workmen were not on the job full time. The

Defendant explained that certain supplies and materials had not yet arrived,

which puzzled the Boops because the money that had been advanced was to

cover the purchase of such supplies and materials and they should have been

on site. N.T. 4/4/14 at 67. During the last week of November 2012 the

Defendant was not present at the job site at all because he was on a cruise.

N.T. 4/4/67. The Boops were particularly concerned because the Defendant

had told the Boops that his foreman would be in charge of the project while the

Defendant was on his cruise, and the Boops had been given assurances that

certain materials and supplies would arrive and the work would move forward.

However, nothing was happening as promised. N.T. 4/4/ 14 at 68. The

15
 Circulated 06/15/2015 01:36 PM

Defendant was supposed to be back from his cruise and on the job on

December 3, 2012. He never showed up. N.T. 4/4/14 at 70. Boop went

searching for the Defendant and found him standing out in front of his shop

with his foreman and several workers. The Defendant announced that he "was

done/ that he was not going to be able to finish the house, that he was going

out of business and filing for bankruptcy. He offered to let Boop pay his

workers and have them work for Boop directly. Boop did not have the money

to finish. A multitude of things were unfinished, everything from a lack of a

heating system, no countertops for kitchen counters, no fixtures or toilets in

the bathrooms, and the flooring was incomplete. Although the stone work was

complete, it had not been paid for. N.T. 4/4/ 14 at 71-73. While the Defendant

had been on his cruise, checks to subs began to bounce. The week of

December 3, 2012 various vendors stopped by the construction site and told

Boop they had not been paid by the Defendant.

Dennis Keefer, VtcePresident of West Milton State Bank, confirmed

Boop's narrative of the meetings with the Defendant. He stated that the

payments in the payment schedule (Commonwealth Exhibit No. 3.1) were all

advance payments conditioned upon the fact that the work described in a prior

payment had been completed. N.T. 4/4/14 at 88. The Defendant fully

understood this arrangement. N.T. 4/4/14 at 89.

Keefer reported his account of the meeting when there was a discussion

about Dwayne Gessner not having been paid. The Defendant assured the

Boops and Keefer that Gessner would be paid. N.T. 4/4/ 14 at 94. Reluctant

16
 Circulated 06/15/2015 01:36 PM

to advance monies for the stone work, and offering to pay the con tractor

directly, the Defendant said that payment had to be to him because he was the

"salesperson" for the stone.

All of the monies available through the loan were paid out by .January

23, 2013. The house was still incomplete. N.T. 4/4/ 14 at 100. The bank

worked with the Boops to get them additional money to complete the house.

N.T. 4/4/14 at 100-104. Keefer stated that had he known that Gessner had

not been paid, no additional draw would have been permitted by the bank.

. N.T. 4/4 / 14 at 103. But because the Defendant assured the Boops and the

bank that Gessner would be paid, the money was released. N.T. 4/4/14 at

104. The Defendant never disclosed that the stone contractor had said that

. only half the stone had to be paid for in order for it to be delivered. The

Defendant represented that all of the stone had to be paid for in advance. N.T.

4/4/ 14 at 105.

The Defendant testified in contradiction to a number of the

Commonwealth witnesses. For example, he stated that Dwayne Gessner was

billing before he did any work, not after. N.T. 4/4/ 14 at 205. The Defendant

asserted that at the time of Oessner's invoices on November 3 and December 3

(Commonwealth Exhibits No. 2.5 and 2.6), the Defendant owed nothing to

Gessner. N.T. 4/4/ 14 at 207. He could not recall any bank meeting when the

subject of Gessner not being paid came up. N.T. 4 /4 / 14 at 207 and 221. He

did not recall ever saying he would pay Gessner. N.T. 4/4/ 14 at 207-208. He

did not recall the bank and the Boops offering to pay Signature Stone directly.

17
 Circulated 06/15/2015 01:36 PM

N.T. 4/4/14 at 221. He labeled his failure to pay Zechman's Well Drilling was

an "oversight/ that the invoice must have been misplaced on the office desk.

N.T. 4/4/14 at 208. He stated that the Boops made changes in the

construction plans which changed the project costs, an allegation denied by

the Boops. N.T. 4/22/ 14 at 42. He asserted that the subcontractors involved

in the construction were actually selected _by the Boops, and that he (the

Defendant) intended to perform most of the work himself. He testified that he

had not seen many of the invoices sent by the subcontractors until the end [of

his business]; he wasn't in the office; he trusted his wife to take care of things;

he wasn't paying attention, he just wanted to finish the house for the Boops.

N.T. 4/4/14 at 211-214. He even asserted that under the contract, which he

himself drafted, he wasn't being paid to pay his subs; he was being paid "to get

the job done." He acknowledged that his business operation "wasn't the most

professional job when it came to paperwork." N.T. 4/4/ 14 at 217-218. He had

no answer as to why Al's Drywall did not get paid. N.T. 4/4/ 14 at 219. He

asserted that Jeff Hess of Signature Stone had said his company could not

accept direct paymentfrom a homeowner, a statement directly refuted by Jeff

Hess on rebuttal. Compare N.T. 4/4/ 14 at 224 and 4/22/ 14 at 30.

The Defendant stated that his business began to run out of steam

around November 15, 2012. N.T. 4/4/14 at 226. Yet during his imminent

business collapse he had time for a hunting trip and a "prepaid" family cruise,

out of the country. N.T. 4/4/14 at 219. The Defendant's wife, Debi Trumper,

the RTC office manager, stated that all of the bounced check problems began

18
 /

Circulated 06/15/2015 01:36 PM

when the Trumper family was away, that before he left they thought there was

sufficient money in the bank to pay all bills. N.T. 4/4/ 14 at 247. She blamed

.John Todhunter, the RTC foreman, for issuing presigned checks and using the

Trumper's bank card. N.T. 4/4/ 14 at 250.

On rebuttal the Commonwealth's witnesses carved further holes in the

Defendant's account. Dwayne Gessner confirmed that he had completed all

work before he issued an invoice for payment. N.T. 4/22 at 8-9. Rene Bruhl, a

sales employee for Sporoco, Inc.," testified that she had met with the Defendant

who was inquiring about buying stone for hand laid stone (loose stone for

laying by a mason, for exterior stone on a house, for example). N.T. 4/2~/ 14

at 15-16. She stated that the Defendant never in fact bought stone from

Sporoco. Through Ms. Bruhl, the Defendant was introduced to Peter Stoner, a

stone mason who happened to be in the warehouse on the day the Defendant

came in. Stoner referred the Defendant to Signature Stone as the vendor for

the kind of stone the Defendant wanted for the Boop house. N.T. 4/22/14 at

22. This testimony directly contradicted the Defendant's testimony that at the

time of the October meeting with the bank, when Keefer and the Boops offered

to pay the stone vendor directly, the Defendant said he was not dealing with

Signature Stone for stone, and that it was Jeff Hess of Sparaco who had said

payment could not come directly from the customer but had to come through

the Defendant. Compare N.T. 4/4/ 14 at 221 (Defendant's testimony) with N.T.

4/22/14 at 29-30 (testimony of Jeff Hess, owner of Signature Stone).

IThe business name is correctly spelled "Sporoco." There arc various incorrect spellings
appearing in different parts of the record.
19
 Circulated 06/15/2015 01:36 PM

Jonathan Boop again took the stand and confirmed that the Defendant,

indeed, had been made aware that Dwayne Gessner had not been paid, and

that the Defendant assured them that Gessner would be paid and that all subs

had been paid up to that point. Boop also stated that the Defendant never

gave any excuse to the effect that Gessner had not been paid because he had

not done the contracted work. N.T. 4/22/ 14 at 35-36. Boop also elaborated

on the fact that when the Boops and the bank offered to pay the stone vendor

directly, the Defendant was adamant that the money had to go-to him because

he was the authorized agent to deal with the stone vendor. N.T. 4/22/14 at

38. Boop also stated that never at any bank meeting or otherwise had the

Defendant said he was experiencing cost overruns, that he was "running out of

steam" or financial capacity or that he never had enough money to pay the

subs. N.T. 4/22/ 14 at 41. Boop ran through a description of all the work on

the house that remained unfinished as of December 3, 2012 when the

Defendant told Boop "he was done." N.T. 4/22/14 at 43-48.

As we noted earlier in regard to the Hook and Smith cases discussed

above, we found the Defendant's testimony largely incredible and the testimony

of the Commonwealth witnesses highly credible and directly in contradiction to

the Defendant's narrative. The Defendant portrayed himself as a well-

intentioned contractor with lousy business practices. While we agreed that the

Defendant was not a good businessman, we found his intentions to be suspect.

The Defendant operated a -busine~s known as RTC Custom Homes and

Improvements and in the course of his business, using his own contract form,

20
 Circulated 06/15/2015 01:36 PM

made a contract with the Boops by which he represented he would build a

house to certain specifications and for a certain price. He contracted with

certain subcontractors to do a significant part of the work. The contract stated

that per the payment schedule prepared by the Defendant (Commonwealth

Exhibit No. 3.1), payment was due on each phase before work began> and that

all checks should be made payable to R!C, All of the monies paid out on the

construction loan went through the Defendant's hands- some $260,000. His

attempt to argue that nowhere in the contract was he required to pay the

subcontractors is belied by the contract's terms and by the fact that the

contract specified that all monies were to go to the Defendant and did in fact to

him. The Defendant's counsel admitted in court that the Defendant did not

challenge the fact that the subcontractors claimed by the Commonwealth to be

unpaid - were in fact unpaid. The Defendant's duty to pay the subcontractors

was clear, and he failed to do so. This evidence satisfied the offense element

that he failed to provide less than the services offered.

As far as an intention to deceive is concerned, the Defendant's

assurances to the bank and to the Boops in October 2012 that all the

subcontractors had been paid was clearly a lie. His faulty memory of the

meetings with the bank and. the Boops about Dwayne Gessner being unpaid

was overridden by the Boop and Keefer testimony. The Defendant's statement

to the bank and the Boops that Signature Stone required that they be paid

directly by the Defendant was a lie. By the Defendant's own math, he could

only account for paying out only about $57,000 of the $260,000 he received.

21
I
Circulated 06/15/2015 01:36 PM

Defendant's Exhibit No. 1. He never breathed a word of having financial

difficulty as the bank advanced money to him. When the Boops and the bank

expressed concern that Dwayne Gessner had not been paid, the Defendant

never spoke up to say, as he did on the witness stand, that Gessner had failed

to do the contracted work, clearly evidence of the Defendant1s intent to defraud.

The advance of monies by the bank and the nonpayment of presented invoices

all occurred between September 1 and November 131 timing which does not

support the Defendant's portrayal of his business situation. He clearly had the

money in his possession by which he could have paid the particular subs in a

timely manner. By his own testimony he did not know his business had fallen

apart until mid November 2012 so there is no reason he could not have paid

the money out to the subcontractors as he received it. Several subs due money

described their difficulties in reaching the Defendant and getting paid. See

Commonwealth u. Eline, 940 A.2d 421, 433-434 (Pa. Super. 2007)(coupled with

other factors, the defendant's non-responsiveness to telephone calls and

inquiries by victims supports evidence of "intent to deceive"). We also found it

highly suspect that the Defendant went on a prepaid family cruise and a

hunting trip just before the business crashed. No explanation was ever given

by the Defendant as to how he was able to afford such vacations. Even

assuming the Defendant was telling the truth, there are incidental expenses for

travel - such as airfare, meals etc. - that are incurred prior to and during such

a trip. "The trial court is permitted to consider words or conduct or attendant

circumstances which the intent to defraud may be inferred." Commonwealth v.

22
 Circulated 06/15/2015 01:36 PM

Posauek: 420 A.2d 532, 536 (Pa. Super. 1978). Additionally, proof of criminal

intent may be shown by circumstantial evidence. Commonwealth v. Parker,

564 A.2d 246t 249 (Pa. Super. 1989). The Defendant's intention to deceive was

clearly shown.

The same evidence reviewed above support the Defendant's convictions

on Counts 2 and 3 of the Information. Count 2 charged theft by deception-

false impression, the elements of which are:

(1) That the defendant intentionally obtained property
(money) from the victim;

(2) That the property was property of another person i.e. property in
which the defendant had no interest;

(3) That the defendant committed a deception with regard to
the property i.e. the defendant obtained the property by
intentionally creating or reinforcing a false impression as to the
property, which was relied upon by the victim.

As discussed above, the Defendant made false statements to West Milton

State Bank and to the Boops in order to induce them to pay over theborrowed

money to him on the Boop's construction loan, money which neither the bank

nor the Boops would ever have allowed to be pa:.id had they known the truth.

Count 3 accuses the Defendant of theft by failure to make required

disposition of funds. The offense elements are:

(1) That the defendant obtained property (money) of another;

(2) That the defendant obtained the property subject to a known legal
obligation to make a specified disposition from the property;

(3) That the defendant intentionally dealt with the property
obtained as his/her own and failed to make the required
disposition.

23
 Circulated 06/15/2015 01:36 PM

The evidence showed that the Defendant obtained money from West

Milton State Bank pursuant to a construction loan taken out by the Bo ops. By

his own contract language the Defendant was obliged to build a house for the

Boops and pay the subcontractors involved in the work. Instead the Defendant

intentionally kept the money for his own purposes and failed to pay it out as

required.

Case No. CP-CR-109-2013 - Victim Signature Stone

This case involved a single charge of bad checks. At page 6 above, we set

for the elements for the crime of bad checks. In connection with the Boop case

above, at page 10 we 'reviewed the testimony of Jeffrey Hess, owner of

Signature Stone regarding the nonpayment of the initial contract deposit check

of $3,0000. Additional evidence at trial in regard to the bad check offense was

that when the Defendant presented Hess with a check for $3,000 dated

November 13, 2012, he asked him to "hold if' until the next day. The check

was dated November 13, 2012. Hess did not wait until the next day but rather

deposited the check on the same date. The check was returned for

nonsufficient funds with a date of November 29. N.T. 4/3/ 14 at 16, Hess tried

to reach the Defendant with no success, and thereafter on December 3, 2012

sent a letter to the Defendant notifying him of the need to make good on the

check and also sent the statutorily required certified mail letter.

Commonwealth Exhibits No. 1.3 and 1.4, Thereafter Hess received his $3,000

but not within the ten days provided for the statutory presumption of

24
 Circulated 06/15/2015 01:36 PM

knowledge that the check would not be paid. The balance of $3 ,350 due under

the contract was never received. N.T. 4/3/ 14 at 21.

The Defendant made much at trial of the fact that Hess did not follow the

Defendant's request not to deposit the check until the next day. We think that

such a condition is irrelevant to a finding of guilt. The facts showed that the

Defendant issued the check in question; it was presented for payment on the

same day it was issued, which would have been within 30 days of its issuance;

it was returned for nonsufficient funds by the drawee bank; the Defendant had

notice of the bank's failure to pay the check; and he failed to make good within

ten days of the notice. The presumption of knowledge that the check would not

be paid was proven.

Case No. CP~60-CRM324-2013 -Victim Scott Bennett

The Defendant was charged with deceptive businesspractices, violation

18 Pa. C.S.A. §4107(a)(2) (Count 1); and theft by deception - false impression,

violation 18 Pa. C.S.A. §3922(a)(l)(Count 2). We reviewed the elements of these

two offenses in connection with the Boop case - see pages 9 and 23 above.

Both charges in the Bennett case arose between September and November

2012, during the same time period as all of the other cases against the

Defendant discussed above. The charges accused the Defendant, while

operating his construction business, of taking approximately $12,000 with

criminal intent from the victim Scott Bennett by promising to perform certain

contract work which he never in fact performed.

25
 Circulated 06/15/2015 01:36 PM

Bennett testified that he found the Defendant's name in the phone book

yellow pages and contacted him to do finishing work on his partially

constructed house. The contract document, dated September 20, 2012 and

prepared by the Defendant, listed the work to be done, which included "finish

electrical wiring on 1st floor; install drywall throughout 1st floor; cut up concrete

to hook bathroom into lower drain system; finish drywall tape, spackle, sand;
install bathroom- 40 x 30 shower, kamode [sic), double sink, vinyl flooring in

bathroom." Commonwealth Exhibit No. 15. The total amount quoted by the

Defendant was $13,000. On the same date Bennett issued a check for $4,500

before work began. Commonwealth Exhibit No. 15.1. N.T. 4/4/14 at 72-77.

The Defendant asked for additional money and Bennett issued a second check

for $4,000 on October 21 2012. At that time the drywallwork had been put up

but the work was not complete. N.T. 4/4/ 14 at 80. On November 8, 2012
Bennett wrote out a third check- for $1,000 in response to a phone message

left by the Defendant or someone on his behalf in order for work to continue.

N.T. 4/4/14 at 81. Bennett left the check on a table in the house. At that

point no work was being done on the house. No further work was every done

by the Defendant. None of the bathroom fixtures arrived. No plumbing had

been installed. Bennett's evidence included a number of photographs showing

the unfinished condition of the house. Commonwealth Exhibits No. 16-16.19.

After writing the check on November 8, 2012 Bennett tried to get hold of
the Defendant with no luck. No one picked up the phone. N.T. 4/4/14 at 93.
Bennett went to the Defendant's shop to look for him but stopped short of

26
 Circulated 06/15/2015 01:36 PM

going there (apparently because he learned he would not find him there).

Bennett hired another contractor named Tim Karr to perform the work that the

Defendant had contracted to do. N.T. 4/4/ 14 at 94-95. Karr gave an estimate

to perform the work, excluding that part of the drywall which had already been

done by the Defendant, and the wiring. Karr's estimate was $9,250.

Commonwealth Exhibit No. 15.5.

The Defendant acknowledged that the work for Bennett was not

completed, but he tendered the excuse that "with all the extras that had to be

done" there was insufficient money. N.T. 4/4/ 14 at 193. The Defendant said

he told Bennett about the extras. He also stated that it was not he who asked

for the additional $1,000 because at the time he was out of town on a hunting

trip. N.T. 4/4/14 at 195. Additionally, one of the Defendant's workers, Jacob

Strouse, reported that he had gone back to the job site for a one week period

and had been trying to get hold of Bennett without success so, he concluded

the Bennett job by doing "the work we felt was worth the final payment we

received, and that point it was a time and material job that it was best if we

would pull off." N.T. 4/4/ 14 at 234.5

On rebuttal Bennett stated neither the Defendant nor any of his

employees ever told him that they could not finish the job for the quoted price

because of cost limitations. N.T. 4/22/ 14 at 59, 74. All he knew was that he

got a phone message that if he did not pay the additional $1,000, the

Defendant and his workers were not returning. N.T. 4/22/ 14 at 63. The

s Strouse had a prior conviction for theft by unlawful taking. N.T. 4/4/ 14 at 241.

27
 Circulated 06/15/2015 01:36 PM

check made payable to "RTCu was cashed. N.T. 64. Commonwealth Exhibit

No. 15.4. At no time after he abandoned the job, did the Defendant ever offer

to make a refund to Bennett.

In the Bennett case the evidence showed that the Defendant received

some $12,000 from Bennett and in return got only some minimal drywall work

and some minimal wiring work. The bathroom fixtures which were never

delivered would have cost $1,266. Completion of the unfinished work by Tim

Karr's testimony would have been at least $6,250. So although the

Commonwealth could not establish a precise value for what Bennett received

from the Defendant, it is reasonable to assume it was the amount involved in

the Defendant's deception met a threshold level of $2,000 or more, per the

statutory amount. Again the Defendant's defense throughout the cases

against him, including the Bennett case, was that he was a bad businessman,

did not know how to manage money, and that he had no intent to "steal" from

anyone. The requisite criminal intent can be found in the fact that according

to Bennett, the Defendant never told him there were cost overruns; that

someone on the Defendant's behalf led Bennett to believe another $1,000

amount would allow work to continue but the work never did continue; that

after the Defendant abandoned the job, Bennett had trouble getting hold of

him. Moreover, all of the events of the Bennett case coincided exactly with the

events of the other cases against the Defendant. We hearken back to the

points we made earlier - the Defendant was not a credible witness to the Court,

and from all of the attendant circumstances and the circumstantial evidence,

28
 Circulated 06/15/2015 01:36 PM

he was financially desperate and took money from Bennett to keep himself

afloat.

S. Amendment of the Information.

The Defendant has raised as error the fact that the Court allowed the

Commonwealth to amend the Information at trial in the Bennett case - CP-60-

CR-324-2013 - to permit Counts 1 and 2 to be graded as felonies of the third

degree instead of misdemeanors, based on the dollar amount the

Commonwealth expected to prove.

Pa.R.Crim.P. 564 allows for amendment of an information:

when there is a defect in form, the description of the offenseis],
the description of any person or property, or the date charged,
provided the information as amended does not charge an
additional or different offense. Upon amendment, the court may
grant such postponement of trial or other relief as is necessary in
the interests of justice.

The law provides that the purpose of the rule is to insure that a defendant is

fully apprised of the charges, and to avoid prejudice by prohibiting the last

minute addition of alleged criminal acts of which the defendant is uninformed.

Commonwealth u. Mentzer, 18 A.3d 1200, 1202 (Pa. Super. 2011).

When we asked Defendant's counsel at trial how his client was

prejudiced by the amendment, he answered that it affects the penalties and the

"entire calculus" of going to trial. N.T. 4/4/14 at 68. We don't find the

foregoing to be the kind of prejudice contemplated by the rule. Any defendant

going to trial always has to make a "calculus" as to what kind of consequence

he/she faces if convicted. As Mentzer instructs, the key question to be asked is

29
 Circulated 06/15/2015 01:36 PM

whether the defendant is fully apprised of the factual scenario which supports

the charges against him/her. "Where the crimes specified in the original

information involved the same basic elements and arose out of the same

factual situation as the crime added by the amendment, [the defendant] is

deemed to have been placed on notice regarding his alleged criminal conduct."

Id. Here the evidence was the same whether a misdemeanor or felony was

charged, and the only question was whether the Commonwealth's proof

attained a certain dollar amount. Moreover, the "mere possibility that

amendment of an information may result in a more severe penalty .. .is not, of

itself, prejudice." Id.

4. illegality of Sentence.

In the Hook, Signature Stone, Smith, Bennett, and Sporoco cases the

Defendant asserts that the Court abused itsdiscretion in imposing a custodial

sentence (top of the guidelines) when a sentence of probation would have

provided the Defendant an opportunity to work and pay restitution and

support his family, would better comply with the purposes of the Sentencing

Code."

A claim that a court abused its discretion can apply only if the Court

exceeded the statutory limits or the sentence is manifestly excessive. In order

to preserve this claim on appeal, the Defendant must either raise the matter at

sentencing or by the filing of a timely motion to modify or reconsider sentence.

Commonwealth v. Trinidad, 90 A.3d 721, 729 (Pa. Super. 2014). A review of

the sentencing transcript does not reveal any contention by the Defendant that
30
 Circulated 06/15/2015 01:36 PM

the sentence was excessive. The record also shows the Defendant did not file

any post-sentence motion on this point. We believe the Defendant has waived

the right to challenge the sentence on appeal as an abuse of discretion.

We note for the benefit of the Superior Court, the sentences we imposed

upon the Defendant were all within the statutory limits and, therefore, legal.

All sentences were within the standard range of the sentencing guidelines. We

stated at the sentencing hearing that we took into account the provisions of the

Sentencing Code on the general standards of sentencing found at 42 Pa. C.S.A.

§972 l(b). We presided at the trial and thus had the benefit of hearing all of the

evidence. We stated that we reviewed the presentence report and the guideline

forms, .which satisfies the requirements that we must give reasons for our

sentence. Commonwealth u. Reynolds, 835 A.2d 720, 734 (Pa. Super. 2003).

We considered the victim statements attached to the report, the arguments of

counsel, the Defendant's own statement, the character witnesses he provided

at trial, and the letters in support of his good character presented at the

sentencing hearing. See Sentencing Hearing Transcript, 6/20/ 14. In short, we

followed all of the legal requirements in regard to sentencing and there was no

abuse of discretion.

31
 Circulated 06/15/2015 01:36 PM

5. Conclusion.

For the reasons stated, we believe the judgment of sentence should be

affirmed.

BY THE COURT:

~:±/!
Copies to: District Attorney
James L. Best, J .D. PROTHONOTARY-CLERX OF COURTS
Mary F. Leshinskie, J.D., Law Clerk UNION COUTY, PA '
CERTIFIED FROM TiiE RECORD ON THIS DATE
.Judge Knight's file

E-copies to: Hon. Michael T. Hudock, P.J. NOV l O 2014
Hon. Michael H. Sholley J.
Hon. Harold F. Woelfel, S.J.

32