J-S31010-17
NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
COMMONWEALTH OF PENNSYLVANIA IN THE SUPERIOR COURT OF
PENNSYLVANIA
v.
MICHAEL CIOPPA
Appellant No. 958 WDA 2016
Appeal from the Judgment of Sentence May 12, 2016
In the Court of Common Pleas of Allegheny County
Criminal Division at No(s): CP-02-CR-0001617-2015
BEFORE: PANELLA, J., DUBOW, J., and FORD ELLIOTT, P.J.E.
MEMORANDUM BY PANELLA, J. FILED JUNE 27, 2017
Appellant, Michael Cioppa, appeals from the judgment of sentence
entered on May 12, 2016, in the Court of Common Pleas of Allegheny
County. Cioppa, the owner of Cioppa Asphalt & Seal Coating, appeals his
convictions for theft by deception and home improvement fraud, stemming
from his failure to resurface a residential driveway—a driveway he left
“subpar and look[ing] horrible.” We affirm.
This case proceeded to a bench trial where the parties agreed that
they would simply enter into evidence, in lieu of testimony, the affidavit of
probable cause attached to the criminal complaint. The affidavit of probable
cause establishes the following. Christina Bougher hired Cioppa’s company
to resurface her driveway. On October 17, 2014, she paid Cioppa a down
payment of $600. Work began the next day. That day, Cioppa’s cousin, and
J-S31010-17
his employee, Victor Cioppa, requested an additional $350 for supplies and
equipment, which Bougher paid. After that day, neither Cioppa nor his
cousin ever returned to the jobsite, leaving the job unfinished. The work
done was “subpar and looked horrible.” Affidavit of Probable Cause, dated
11/12/14. Bougher attempted to contact Cioppa “multiple times,” but to no
avail. Id. She had to hire another company “to remove the subpar work”
Cioppa left behind. Id. And she went to the police to report Cioppa.
The trial court convicted Cioppa of theft by deception, 18 Pa.C.S.A. §
3922(a)(1), and home improvement fraud, 73 P.S. § 517.8(a)(2), and later
imposed a period of incarceration of six to twelve months, from which he
was immediately paroled. The trial court also imposed restitution.
On appeal, Cioppa first argues that the Commonwealth presented
insufficient evidence to sustain the convictions. We disagree.
Our standard of review for a challenge to the sufficiency of the
evidence is to determine whether, when viewed in a light most favorable to
the verdict winner, the evidence at trial and all reasonable inferences
therefrom are sufficient for the trier of fact to find that each element of the
crimes charged is established beyond a reasonable doubt. See
Commonwealth v. Dale, 836 A.2d 150, 152 (Pa. Super. 2003). “The
Commonwealth may sustain its burden of proving every element of the
crime beyond a reasonable doubt by means of wholly circumstantial
-2-
J-S31010-17
evidence.” Commonwealth v. Bruce, 916 A.2d 657, 661 (Pa. Super. 2007)
(citation omitted).
“[T]he facts and circumstances established by the Commonwealth
need not preclude every possibility of innocence.” Id. (citation omitted). Any
doubt raised as to the accused’s guilt is to be resolved by the fact-finder.
See id. “As an appellate court, we do not assess credibility nor do we assign
weight to any of the testimony of record.” Commonwealth v. Kinney, 863
A.2d 581, 584 (Pa. Super. 2004). Therefore, we will not disturb the verdict
“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.” Bruce,
916 A.2d at 661 (citation omitted).
“A person is guilty of theft if he intentionally obtains or withholds
property of another by deception. … A person deceives if he intentionally:
creates or reinforces a false impression, including false impressions as to
law, value, intention or other state of mind[.]” 18 Pa.C.S.A. § 3922(a)(1). To
sustain a conviction for theft by deception “it must be because appellant
never intended to perform his part of the contract….” Commonwealth v.
Gallo, 373 A.2d 1109, 1111 (Pa. 1977). This is because the subsection
provides that “deception as to a person’s intention to perform a promise
shall not be inferred from the fact alone that he did not subsequently
perform the promise[.]” 18 Pa.C.S.A. § 3922(a)(1).
-3-
J-S31010-17
Cioppa argues that the Commonwealth presented no evidence of
intent except the failure to perform. He analogizes this case to cases where
we found no evidence that the defendant never intended to perform his part
of the contract, instead finding that the defendant simply failed to perform
his contractual obligation. See, e.g., Commonwealth v. Bentley, 448 A.2d
628 (Pa. Super. 1982). He also relies on Bentley to argue that “the failure
to perform the work after requesting additional funds cannot be used to
prove the intent to deceive.” Appellant’s Brief, at 15. Indeed, he claims
Victor Cioppa’s actions in returning the second day to ask for more money
cannot even be imputed to him.
Cioppa is certainly correct that merely requesting additional funds to
complete work, after receiving a down payment, and then not completing
the work, is not proof, by itself, of the intent to deceive. That is not what
happened here. What Cioppa fails to mention in his brief, and what readily
distinguishes this case from Bentley, is that the work done here was
“subpar and looked horrible.” Further, it is a reasonable inference for the
factfinder to attribute Victor Cioppa’s actions, Cioppa’s employee, in
returning to ask for more money, to Cioppa. By the end of the second day,
all Cioppa accomplished was work that was gravely deficient—and then
nothing. Bougher was unable thereafter to contact Cioppa. She then had to
hire another company “to remove the subpar work” Cioppa left behind.
-4-
J-S31010-17
Looking at the totality of the circumstances, in the light most favorable
to the Commonwealth, we find that the Commonwealth presented sufficient
evidence that Cioppa never intended to perform his part of the contract. The
slapdash, poor quality work, when coupled with Bougher’s inability to
contact Cioppa, permits the factfinder to find intent to deceive. We sustain
the conviction for theft by deception.
Cioppa next argues that the Commonwealth failed to prove that he
acted “with intent to defraud … anyone or with knowledge that he is
facilitating a fraud … to be perpetrated by anyone, the actor,” necessary to
sustain his conviction for home improvement fraud, 73 P.S. § 517.8(a)(2).
As we just explained that the evidence adduced by the Commonwealth was
sufficient to establish that Cioppa acted with the intent to defraud, we need
not address this claim any further. We sustain the conviction for home
improvement fraud.
Lastly, Cioppa claims the verdict is against the weight of the evidence.
As mentioned, this case proceeded by way of a bench trial on stipulated
facts.
“[W]e may only reverse the lower court’s verdict if it is so contrary to
the evidence as to shock one’s sense of justice.” Commonwealth v.
Champney, 832 A.2d 403, 408 (Pa. 2003) (citations omitted). A verdict is
said to be contrary to the evidence such that it shocks one’s sense of justice
when “the figure of Justice totters on her pedestal,” or when “the jury’s
-5-
J-S31010-17
verdict, at the time of its rendition, causes the trial judge to lose his breath,
temporarily, and causes him to almost fall from the bench, then it is truly
shocking to the judicial conscience.” Commonwealth v. Davidson, 860
A.2d 575, 581 (Pa. Super. 2004) (citations omitted), aff’d, 938 A.2d 198
(Pa. 2007).
The trial court found the verdict did not shock its sense of justice. We
find no abuse of discretion with this conclusion. The figure of Justice is firmly
rooted to her pedestal in this case. Therefore, this claim fails.
Judgment of sentence affirmed.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 6/27/2017
-6-