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NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
COMMONWEALTH OF PENNSYLVANIA IN THE SUPERIOR COURT OF
PENNSYLVANIA
Appellee
v.
KIM A. ZAFFINO
Appellant No. 3261 EDA 2014
Appeal from the Judgment of Sentence October 23, 2014
in the Court of Common Pleas of Bucks County
Criminal Division at No(s): CP-09-CR-0003231-2014
BEFORE: BENDER, P.J.E., SHOGAN, J., and JENKINS, J.
MEMORANDUM BY JENKINS, J.: FILED NOVEMBER 10, 2015
Appellant Kim Zaffino appeals from the judgment of sentence entered
in the Bucks County Court of Common Pleas following her jury trial
conviction for attempted theft by deception,1 and insurance fraud.2 After
careful review, we affirm.
The trial court set forth the relevant facts and procedural history of
this matter as follows:
On August 27, 2010, the Appellant signed an agreement to
lease her property at 721 Country Club Lane in Warrington,
Pennsylvania to Scott and Jennifer Beverly. At trial, Jennifer
Beverly testified that she saw an ad listing the Appellant’s 721
Country Club Lane property for rent on Craigslist and contacted
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1
18 Pa.C.S. § 901(a); 18 Pa.C.S. § 3922(a)(1).
2
18 Pa.C.S. § 4117(a)(2).
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the Appellant. The family moved into the house in October of
2010, and they were evicted in late March or early April of 2011
for failure to make rent payments.[3] A constable was present on
the day the Beverlys moved out to ensure smooth transition.
Ms. Beverly said that aside from a cracked toilet tank, the house
was in the same condition as when the family moved in. Scott
Beverly stated that the family did not damage the house in any
way but that they left some trash in the garage.
On March 19, 2011, the Appellant emailed Allstate agent
Ralph Heffley, stating that: “I need to make changes to my
Home Owners Policy – effective immediately. My policy number
is 9 08 543551 03/31. I have moved out of the property and
would like to insure it for tenants and against any potential
damages they may cause.” Mr. Heffley advised the Appellant
that she did not qualify for a landlord policy.
On April 19, 2011, the Appellant reported a claim under
her homeowner’s policy to Allstate for damage to her 721
Country Club Lane property. Mr. Heffley explained to the
Appellant that the damage might not be covered because she did
not have the correct policy in place.
On May 13, 2011, Allstate Senior Claims Analyst Terri
Hemler and Allstate Property Adjuster Alan Duddy conducted a
recorded telephone statement with the Appellant regarding her
claim. During the interview, the Appellant stated that she had
hired Scott Beverly to perform work at her house and that he
and his family damaged the property while staying there without
permission. The Appellant stated that “I had no idea that he had
moved into the property . . . I indicated to him that he was not
to stay there. He was not to live there, that was my residence
and not his . . . As far as I know, nobody was actually living
there.” Additionally, the Appellant stated that “[t]here was no
agreement for them to stay at all. I told them that they couldn’t
maintain that as a residence. It was my residence.”
The Appellant also noted that “[w]hen I found out that
they were there, I told them that they could not stay. That if
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3
On January 13, 2011, and March 11, 2011, Appellant filed Landlord/Tenant
complaints against the Beverlys for outstanding rent on the 721 Country
Club Lane property. Appellant won judgments on those complaints.
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they were working late hours, they needed to make
arrangements to leave but that they could not sleep overnight in
that property.” Furthermore, the Appellant said that “[t]here
was no lease. There was no rent. There was no payment of
rent. There was no expectation of payment of rent because they
were not to stay there. That wasn’t a residence for them.”
Based on the inconsistent statements regarding the
Appellant’s arrangement with the Beverlys, Allstate referred the
claim to Special Agent Mark Sabo with the Attorney General’s
office for further investigation. Based on Agent Sabo’s
investigation, the Attorney General’s office brought charges
against the Appellant on January 28, 2014.
Trial Court Pa.R.A.P. 1925(a) Opinion, March 17, 2015 (“1925(a) Opinion”),
pp. 1-3 (record citations omitted).
On October 23, 2014, following a three-day trial, a jury convicted
Appellant of attempted theft by deception and insurance fraud. On October
23, 2014, the trial court sentenced Appellant to one year of probation on
each conviction, for an aggregate sentence of two years’ probation.
Appellant filed a timely notice of appeal on November 17, 2014.4
Appellant raises the following issue for our review:
1. Was the evidence insufficient as a matter of law to support
[Appellant’s] convictions for attempted theft by deception and
insurance fraud, where the Commonwealth failed to establish
that [Appellant] acted with the requisite intent, and where the
Commonwealth failed to prove the element of materiality?
Appellant’s Brief, p. 4.
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4
Both Appellant and the trial court complied with Pa.R.A.P. 1925.
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Appellant claims that the Commonwealth adduced insufficient evidence
to support her convictions. See Appellant’s Brief, pp. 10-17. Specifically,
Appellant claims the evidence presented did not prove beyond a reasonable
doubt the element of intent. See id. This claim lacks merit.
When examining a challenge to the sufficiency of evidence, this Court’s
standard of review is as follows:
The 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. In applying [the above] test,
we may not weigh the evidence and substitute our judgment for
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. Moreover, 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 v. Smith, 97 A.3d 782, 790 (Pa.Super.2014).
1. Attempted Theft By Deception.
Under the Pennsylvania Crimes Code, “[a] person commits an attempt
when, with intent to commit a specific crime, he does any act which
constitutes a substantial step towards the commission of the crime.” 18
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Pa.C.S. § 901(a). The Crimes Code defines theft by deception, in relevant
part, as follows:
(a) Offense defined.--A person is guilty of theft if he
intentionally obtains or withholds property of another by
deception. A person deceives if he intentionally:
(1) creates or reinforces a false impression, including false
impressions as to law, value, intention or other state of
mind; but deception as to a person’s intention to perform a
promise shall not be inferred from the fact alone that he
did not subsequently perform the promise[.]
18 Pa.C.S. § 3922(a)(1).
Further, we note that “intent can be proven by direct or circumstantial
evidence; it may be inferred from acts or conduct or from the attendant
circumstances.” Commonwealth v. Franklin, 69 A.3d 719, 723
(Pa.Super.2013).
The trial court analyzed Appellant’s sufficiency claim as it pertains to
her attempted theft by deception conviction as follows:
[T]he Appellant intentionally took a substantial step towards
obtaining the property of another by deception because she filed
a claim under her homeowner’s policy with Allstate, knowing that
she was not entitled to receive money for this claim.
Additionally, ample evidence was presented to establish that the
Appellant attempted to obtain money by deception because,
during her recorded statement with Allstate agents, she denied
giving the Beverlys permission to live at her property despite the
fact that she signed a lease with Scott and Jennifer Beverly.
Furthermore, the Attorney General presented evidence that the
Appellant knew these statements were false because she and the
Beverlys signed a residential lease agreement for her property at
721 Country Club Lane on August 27, 2010.
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1925(a) Opinion, p. 6 (record citations omitted). After discussing
Appellant’s unsuccessful attempts to change her homeowner’s policy into a
landlord policy discussed supra, the trial court further stated:
The Appellant’s inquiries regarding the landlord policy, and
Mr. Heffley’s responses, demonstrate that she was aware that
her homeowner’s policy would not cover losses from tenants and
that she would need a landlord policy to cover potential damages
from tenants. Thus, the evidence established that the Appellant
knew that the existence of a lease was critical to whether or not
she could collect under her homeowner’s policy and that telling
Allstate agents that she was not renting out the property would
entitle her to money for her losses under her homeowner’s
policy.
Id. at 7. Finally, the trial court concluded:
The lease, the recorded statement, the admissions of
Appellant, and the testimony of Allstate agents provided more
than sufficient evidence to support the Appellant’s conviction for
[a]ttempted [t]heft by [d]eception.
Id.
We agree with the trial court that this evidence, viewed in the light
most favorable to the Commonwealth as verdict winner, sufficiently enabled
the jury to find every element of attempted theft by deception beyond a
reasonable doubt.
2. Insurance Fraud.
Under the Crimes Code, an individual commits the crime of insurance
fraud if the individual:
Knowingly and with the intent to defraud any insurer or self-
insured, presents or causes to be presented to any insurer or
self-insured any statement forming a part of, or in support of, a
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claim that contains any false, incomplete or misleading
information concerning any fact or thing material to the claim
18 Pa.C.S. § 4117(a)(2).
The trial court addressed the sufficiency of the Commonwealth’s
evidence as to this conviction as follows:
[T]he conviction for insurance fraud is supported by evidence
that the Appellant made false statements to Allstate agents
regarding the Beverlys’ status as tenant at her property, and
that she did so knowingly and with the intent to defraud Allstate.
. . . [T]he evidence showed that the Appellant made false
statements to Allstate during the recorded statement because
the Appellant insisted to Ms. Hemler and Mr. Duddy that the
Beverlys were not leasing her property and that she specifically
told them on multiple occasions that they were not to stay there.
Furthermore, during conversation with Mr. Heffley, the Appellant
was advised that she needed renter’s insurance and that she was
denied it.
1925(a) Opinion, pp. 7-8.
Again, we agree with the trial court that the Commonwealth presented
sufficient evidence for the jury to find every element of insurance fraud
beyond a reasonable doubt.
Judgment of sentence affirmed.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 11/10/2015
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