J-S22020-19
NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
COMMONWEALTH OF PENNSYLVANIA : IN THE SUPERIOR COURT OF
: PENNSYLVANIA
:
v. :
:
:
ROBERT ANTHONY KOLOVICH :
:
Appellant : No. 1077 MDA 2018
Appeal from the Judgment of Sentence Entered June 4, 2018
In the Court of Common Pleas of York County Criminal Division at No(s):
CP-67-CR-0007618-2014
BEFORE: SHOGAN, J., DUBOW, J., and PELLEGRINI*, J.
MEMORANDUM BY DUBOW, J.: FILED OCTOBER 22, 2019
Appellant, Robert Anthony Kolovich, appeals from the Judgment of
Sentence entered in the York County Court of Common Pleas following his
convictions of Theft by Deception and Theft by Failure to Make Required
Disposition of Funds.1 Appellant challenges the sufficiency of evidence
supporting his conviction of Theft by Deception. After careful review, we
affirm.
We glean the following relevant facts and procedural history from the
certified record. Appellant was the owner of Lifetime Choice Windows, a
business that sold and installed windows and doors. From its inception,
Appellant financed his business using a cash advance company to purchase
materials and labor. Appellant repaid his loans with the cash advance company
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1 18 Pa.C.S. § 3922(a)(1) and 18 Pa.C.S. § 3927(a), respectively.
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* Retired Senior Judge assigned to the Superior Court.
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by depositing funds that his customers paid to him into a general bank account
from which the cash advance company would withdraw the funds that
Appellant owed.
Beginning in 2013, Appellant’s installation business began to experience
financial difficulties and Appellant was unable to pay his personal and business
debts. During the last quarter of 2013, the cash advance company refused to
advance Appellant any more funds because Appellant had multiple unpaid
loans.
In June 2013, the Victim contacted Appellant to replace windows on his
house. On June 29, 2013, Appellant and the Victim entered into a contract for
the replacement of windows. Most significantly, on July 12, 2013, they entered
into an addendum to the contract, in which Appellant agreed to replace the
Victim’s front door and install a storm door and side lights. The Victim gave
Appellant $2,000 as a down payment for the front door, storm door, and side
lights. Appellant did not use the down payment to purchase the materials for
the front door, storm door, and side lights, but rather used the $2,000 to
repay his loans to the cash advance company.
On October 27, 2013, Appellant installed the replacement windows, but
he did not replace the Victim’s front door, storm door, or side lights. Over the
next couple months, the Victim contacted Appellant numerous times regarding
the delay with the unfinished work. Appellant falsely blamed the door company
for the delay, even though he had never placed a valid order for the front
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door, storm door or side lights. In their last conversation on December 4,
2013, Appellant admitted that he lacked the funds to replace the Victim’s front
door, side door, and side lights and could not refund the $2,000 deposit due
to his financial problems.
On July 28, 2014, the Victim filed a police report with James Boddington,
Chief of the Southern Regional Police Department. On December 15, 2014,
the Commonwealth filed a criminal information against Appellant, charging
him with Theft by Deception and Deceptive Business Practices.
The court scheduled a pretrial conference on April 7, 2015, but after
Appellant failed to appear, it issued a bench warrant.2 On April 27, 2015,
Appellant filed a pretrial Motion to Quash, asserting that the Deceptive
Business Practices statute is unconstitutional. The Commonwealth
subsequently withdrew the Deceptive Business Practices charge.
On August 15, 2015, the trial court granted the Commonwealth’s motion
to add a new count, Home Improvement Fraud.3 The court further stated it
would not enter a scheduling order due to Appellant’s involvement in a case
in a different county.
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2 In March, 2014, Appellant was incarcerated as a result of similar charges in
another county. He was released, and thus no longer in custody, at the time
that he failed to appear for the April 2015 pretrial conference.
3 73 P.S. § 517.8.
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On August 31, 2017,4 a new attorney entered his appearance on behalf
of Appellant. On April 4, 2018, just before Appellant’s bench trial commenced,
the Commonwealth amended the Information to add an additional count, Theft
by Failure to Make Required Disposition of Funds. Appellant did not contest
the amendment.
The trial court held a bench trial in which Appellant, the Victim, and
Chief Boddington testified. The trial court found Appellant guilty of Theft by
Deception and Theft by Failure to Make Required Disposition of Funds.5 The
court ordered a pre-sentence investigation report.
On June 4, 2018, the court sentenced Appellant to, inter alia, time-
served to 23 months’ incarceration, followed by three years’ probation. 6
Appellant did not file a post-sentence motion.
Appellant timely filed a Notice of Appeal. Both Appellant and the trial
court complied with Pa.R.A.P. 1925.
On appeal, Appellant contends that the evidence is insufficient to sustain
his Theft by Deception conviction. Appellant’s Br. at 4, 15-18. He asserts that
the evidence does not establish that he intentionally obtained or withheld the
Victim’s $2,000 by creating or reinforcing a false impression. Id. He avers that
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4 The Court of Common Pleas docket indicated that no proceedings occurred
in this case for two years—from the August 15, 2015 hearing until August 22,
2017.
5 The court found Appellant not guilty of Home Improvement Fraud.
6 The sentencing court merged the Theft by Failure to Make Required
Disposition of Funds conviction with the Theft by Deception conviction.
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because he performed significant work on the contract and his cash flow
problems began after he entered into his contract with the Victim, the
evidence demonstrates that he intended to perform his part of the contract.
Id. He attributes his failure to replace the Victim’s door or to refund $2,000
to the Victim on poor business practices. Id. at 18.
“A claim challenging the sufficiency of the evidence is a question of
law.” Commonwealth v. Widmer, 744 A.2d 745, 751 (Pa. 2000). “[O]ur
standard of review is de novo and our scope of review is plenary.”
Commonwealth v. Hutchinson, 164 A.3d 494, 497 (Pa. Super. 2017)
(citation omitted).
In reviewing a sufficiency challenge, we determine “whether the
evidence at trial, and all reasonable inferences derived therefrom, when
viewed in the light most favorable to the Commonwealth as verdict winner,
are sufficient to establish all elements of the offense beyond a reasonable
doubt.” Commonwealth v. May, 887 A.2d 750, 753 (Pa. 2005) (citation
omitted). “Further, a conviction may be sustained wholly on circumstantial
evidence, and the trier of fact—while passing on the credibility of the witnesses
and the weight of the evidence—is free to believe all, part, or none of the
evidence.” Commonwealth v. Miller, 172 A.3d 632, 640 (Pa. Super. 2017)
(citation omitted). “In conducting this review, the appellate court may not
weigh the evidence and substitute its judgment for the fact-finder.” Id.
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Pursuant to Section 3922(a), a person is guilty of Theft by Deception if
“he intentionally obtains or withholds property of another by deception.” 18
Pa.C.S. § 3922(a). 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. § 3922(a)(1). However, the factfinder may
not infer that a defendant intended to deceive the victim solely from the fact
that the defendant failed to perform the acts he promised to perform. Id. The
factfinder must infer from other facts that the defendant “never intended to
perform his part of the contract.” Commonwealth v. Gallo, 373 A.2d 1109,
1111 (Pa. 1977); Commonwealth v. Bentley, 448 A.2d 628, 631 (Pa.
Super. 1982).
Here, the factfinder reviewed all the evidence before concluding that
Appellant “never intended to perform his part of the contract.” In its 1925(a)
Statement, the trial court concluded that Appellant intentionally obtained and
withheld the $2,000 by deception. Supplemental 1925(a) Statement, dated
8/14/19, at 4. In particular, the trial court first found that Appellant obtained
the $2,000 by deception because Appellant, knowing that he had outstanding
debts to the cash advance company, created the false impression that he
would use the $2,000 to purchase materials for the job when Appellant
intended to use the $2,000 to repay his debt to the cash advance company.
The trial court found [the Victim’s] testimony credible and
concluded that Appellant intentionally created a false impression
as to what he intended to do with [the Victim’s] money. The trial
court found that Appellant knew that his undisclosed “cash flow
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problem” and “stacking” problem would impede his ability to
install [the Victim’s] door and anticipated that “[the cash advance
company would eat] up part of [the $2,000].” Appellant
intentionally reinforced a false impression by representing
to [the Victim] that the money [he] received from [the
Victim] would be expressly used to purchase materials
even though he knew the money would be immediately
absorbed by the cash advance company to which [he] was
indebted.
Id. (emphasis added, citations omitted, and modifications in original). The
trial court further found that Appellant withheld the $2,000 by deception
when he falsely told the victim that it was the door company’s fault that he
could not complete the installation when, in fact, it was Appellant’s misuse of
the Victim’s funds that caused Appellant to be unable to complete the
installation. It stated:
[f]urther, when [the Victim] inquired on multiple occasions about
the status of the door installation, Appellant intentionally
reinforced a false impression by telling him that the delay was due
to the door company’s neglect, when in fact, it was due to
Appellant’s conduct. Appellant never placed a valid order for the
door.
Id.
We agree with the trial court’s apt analysis. Viewing all the facts
in a light most favorable to the Commonwealth as the verdict winner,
we conclude that the evidence, and all reasonable inferences derived
therefrom, is sufficient to support the trial court’s determination that
Appellant never intended to complete the contract. He obtained and
withheld the Victim’s $2,000 by creating and reinforcing the false
impression that he would purchase and install the Victim’s front door,
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storm door, and side lights when he had used the $2,000 for other
purposes. Gallo, supra at 1111; Bentley, supra at 631.7 Accordingly,
Appellant is not entitled to relief on his claim that his Theft by Deception
conviction cannot be sustained.
Judgment of Sentence affirmed.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 10/22/2019
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7 In Commonwealth v. Bentley, we concluded that the evidence was
insufficient to establish that the appellant never intended to perform his part
of the contract to install a porch, and noted the appellant’s use of proceeds
for unrelated purposes was not barred by the home improvement contract.
448 A.2d 628, 632 (Pa. Super. 1982). The instant case is distinguishable. In
Bentley, the appellant informed the complainant that he was using the
deposit for unrelated purposes. Id. at 629. Additionally, the parties agreed,
at least in part, that the appellant’s failure to complete the contract was
partially due to unexpected problems, including the type of concrete block to
be used and the width of the porch. Id. at 630
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