J-S24035-20 & J-S24036-20
NON-PRECEDENTIAL DECISION – SEE SUPERIOR COURT I.O.P 65.37
COMMONWEALTH OF PENNSYLVANIA, : IN THE SUPERIOR COURT OF
: PENNSYLVANIA
Appellee :
:
v. :
:
DAVID R. PRATT, :
:
Appellant : No. 2599 EDA 2019
Appeal from the Judgment of Sentence Entered August 20, 2019
in the Court of Common Pleas of Bucks County
Criminal Division at No(s): CP-09-CR-0003704-2018
COMMONWEALTH OF PENNSYLVANIA, : IN THE SUPERIOR COURT OF
: PENNSYLVANIA
Appellee :
:
v. :
:
DAVID R. PRATT, :
:
Appellant : No. 2603 EDA 2019
Appeal from the Judgment of Sentence Entered August 20, 2019
in the Court of Common Pleas of Bucks County
Criminal Division at No(s): CP-09-CR-0008146-2017
BEFORE: BENDER, P.J.E., STABILE, J. and STRASSBURGER, J.*
MEMORANDUM BY STRASSBURGER, J.: FILED SEPTEMBER 11, 2020
David R. Pratt (Appellant) appeals from his judgments of sentence
imposed following his convictions for burglary, home improvement fraud,
deceptive business practices, and theft by deception at docket number CP-
09-CR-0008146-2017 (8146), and for home improvement fraud, two counts
of theft by deception, two counts of receiving stolen property, bad checks,
*Retired Senior Judge assigned to the Superior Court.
J-S24035-20 & J-S24036-20
and theft of services at docket number CP-09-CR-0003704-2018 (3704).
We affirm his judgment of sentence at each docket.1
All of the charges relate to Appellant’s business dealings. The
burglary, deceptive or fraudulent business practices, and theft by deception
charges at docket number 8146 stemmed from
a large-scale renovation project Appellant agreed to undertake
for Julie and Wayne Dovan. The Dovans [live in New York City,
but spend weekends at a home they] own []in … Bucks County.
In the summer of 2015, the Dovans contacted Appellant to
renovate a barn located on their property. The renovations were
to include re-siding the existing structure and remodeling the
interior to include an art studio, an entertainment area, and a
storage space. On September 12, 2015, Appellant provided the
Dovans with an estimate of $95,900 [for the renovations].
Between September 21, 2015, and March 6, 2016, the Dovans
issued checks, payable to Appellant, totaling $42,000. …
Although the work appeared to proceed quickly in the fall
of 2015,3 no significant work had been [completed] on the
project as of the [s]pring of 2017, 20 months after the project
began.
______
3 A trench for water and electric lines was dug, some
framing was placed at the back of the barn, and pointing of
the existing stonework was done.
As early as December 2015, work stoppages began.
Simultaneously, the Dovans started to have difficulty contacting
Appellant. When they were able to communicate with him, he
gave excuses for his failure to respond to them and for his
failure to work on the property. As the project continued to
stall, the Dovans began to inquire about the materials they had
paid for, specifically the cedar siding [for which they had given
Appellant a $15,000 check on September 21, 2015]. Appellant
1The charges at the two dockets were tried together. We dispose of both
appeals in one memorandum.
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advised the Dovans that the siding had been purchased and was
in storage. Appellant promised the Dovans he would give them
a receipt for the siding. Appellant did not produce a receipt. He
did not deliver or install any wood siding and did not return the
$15,000 the Dovans paid him to purchase the siding.
On May 17, 2017, after an extended absence from the
property and sporadic contact with the Dovans, Appellant made
an unannounced appearance at the Dovan residence, [which was
located next to the barn]. The Dovans’ surveillance camera
captured images of Appellant entering and leaving the Dovans’
home. Appellant entered the home at 12:55 p.m. He left the
residence two minutes later, at 12:57 p.m., carrying two bottles
of beer. Appellant did not have permission to enter the
residence and did not have permission to take the beer. … Upon
being questioned by the Dovans, Appellant stated he entered
their residence to retrieve screws and nails. Shortly thereafter,
the Dovans terminated the contract.
A review of Appellant’s finances revealed that Appellant
began the project with a negative bank balance. On September
21, 2015, Appellant deposited the $15,000.00 check issued to
him by the Dovans into his account. On that same date,
Appellant cashed a check, payable to himself, for $5,000.00
from that same account. Two days later, Appellant cashed
another check, also payable to himself, for $5,000.00 from the
account. Appellant also made numerous ATM cash withdrawals
from the account that resulted in another check he issued being
rejected for insufficient funds. The only transactions that
appeared to have any connection to the construction w[ere] to a
lumber company for $349.48 and to a hardware store for $6.66.
On October 26, 2015, Appellant deposited [a] $10,000.00
check issued to him by the Dovans into his account. On that
same date, Appellant cashed two checks made payable to
himself – one for $3,000 and one for $2,550 from the account.
He also made ATM cash withdrawals from the account that
resulted in another check he issued being rejected for insufficient
funds. Nothing in Appellant’s bank records indicates any of the
funds were used for construction purposes.
On February 7, 2016, Appellant deposited [a] $7,000
check issued to him by the Dovans into his account. Over the
following week, Appellant made teller cash withdrawals from that
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account for the amounts of $3,000 and $1,100 and ATM card
cash withdrawals for the amounts of $500, $500, $202.25, and
$202.25. Only two withdrawals appeared to be related to
construction – one for $8.55 to a contractor supply company and
one for $62.02 to Ace Hardware.
On March 6, 2016, Appellant deposited another check for
$10,000 issued to Appellant by the Dovans into his account.
Again, Appellant made a series of teller and ATM withdrawals.
The only withdrawals that appeared to be connected to
construction were for hardware store purchases for $287.82.
At the same time the contract was terminated in the spring
of 2017, the barn was a shell with little more than the frame
standing. In November of 2017, the structure collapsed.
Appellant did not return any of the $42,000 he was paid for the
project.
Trial Court Opinion, 12/20/2019, at 4-7 (some numbering format, comma
use, capitalization, and party designations altered; titles and record citations
omitted).
The second set of charges for theft by deception and receiving stolen
property at docket number 3704
involved a written contract Appellant entered into with
homeowner Nancy Minich in December of 2017 for work to be
performed on her property located … in Bucks County…. Under
the terms of the agreement, Appellant was to build and install a
lattice fence, build and install a gate around an existing chicken
coop, and repair, paint, and re-install an existing gate for
$3,000. Minich gave Appellant a deposit of $1,303 before work
began.
At the time the agreement was entered into, Appellant told
Minich that the project would be complete in a couple of days.
Eight days later, very little work had been done. In order to
assure Minich that the work was, in fact, progressing, Appellant
told her that the gate he agreed to repair was “ready to go” and
he was about to install it. Contrary to Appellant’s
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representations, only minor repairs had been completed on the
gate.
As the work stoppage continued, Appellant began to ignore
Minich’s email and telephone inquiries regarding his failure to
complete the project and her demands for the return of her
down payment. On February 8, 2018, Minich emailed Appellant
advising him that, if she did not hear from him in the next week
and if he did not complete the work as agreed, she would
contact the police. When Appellant did not respond, she emailed
him again on February 14, 2018, and advised him that he “must
either do the work or return the full amount of the check.” She
further advised him that she had contacted the police and
planned to “press charges.”
Appellant did not complete any of the work he agreed to
perform and did not deliver any of the materials he was
obligated to supply. Despite these facts, Appellant did not return
any of Minich’s deposit.
Id. at 7-9 (some numbering format, comma use, capitalization, and party
designations altered; titles and record citations omitted).2
2 During the same trial, Appellant was convicted of several other charges at
docket number 8146 that were also related to his business dealings. He
does not challenge the sufficiency of the evidence for those convictions on
appeal. One set of charges - bad checks, theft by deception, and receiving
stolen property – stemmed from Appellant’s purchase of lumber and other
materials from Tinsman Brothers Lumber, Inc. (Tinsman). On August 23,
2014, Appellant presented a check in the amount of $1,510.57 for these
materials, which subsequently was returned due to insufficient funds in his
account. Tinsman notified Appellant several times of the money due and
owing, but Appellant never paid for the materials.
Appellant’s conviction for theft of services occurred in connection with a
dumpster container from Tinari Container Services (Tinari). Appellant
contracted with Tinari for delivery of a dumpster container to the Dovans’
property in exchange for $405 that Appellant paid for with his credit card.
After delivery, Tinari was only able to charge $17.88 to the card. Tinari
attempted to charge the card 16 times in 2017 without success, Appellant
(Footnote Continued Next Page)
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Following a non-jury trial, the trial court found Appellant guilty of one
count each of burglary, deceptive business practices, bad checks, theft of
services; three counts of theft by deception; and two counts of receiving
stolen property.3 Appellant initially was sentenced on November 16, 2018,
but following timely-filed post-sentence motions, his sentences were
vacated. Re-sentencing was deferred pending Appellant’s evaluation for the
State Intermediate Punishment (SIP) program. On August 20, 2019,
Appellant was re-sentenced. At docket number 8146, the trial court
sentenced Appellant to SIP, a consecutive term of probation of ten years,
and ordered him to pay $42,000 in restitution to the Dovans. At docket
number 3704, the trial court sentenced Appellant to an aggregate term of
probation of seven years, consecutive to his SIP participation and concurrent
to his probation at docket number 8146, and ordered him to pay $4,151.51
in restitution to Minich, Tinari, and Tinsman.
These timely-filed appeals followed. Appellant and the trial court
complied with Pa.R.A.P. 1925. Appellant raises four issues in appeal number
(Footnote Continued) _______________________
did not respond to Tinari’s seven attempts to contact him, and the balance
was still outstanding at trial.
3 The trial court found Appellant not guilty of two counts of home
improvement fraud because neither his agreement with the Dovans nor his
agreement with Minich specified a date by which the services and materials
were to be provided.
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2603 EDA 2019, which relates to the crimes against the Dovans at docket
number 8146.
1. Whether there was insufficient evidence to find Appellant
guilty of burglary because the Commonwealth failed to prove
beyond a reasonable doubt that Appellant entered the home
with the intent to commit a crime therein.
2. Whether there was insufficient evidence to find Appellant
guilty of burglary because the Commonwealth failed to prove
beyond a reasonable doubt that Appellant was not licensed
and/or privileged to enter the home.
3. Whether there was insufficient evidence to find Appellant
guilty of deceptive business practices because the
Commonwealth failed to prove beyond a reasonable doubt
that Appellant had the intent to deceive.
4. Whether there was insufficient evidence to find Appellant
guilty of theft by deception because the Commonwealth failed
to prove beyond a reasonable doubt that Appellant had the
intent to permanently deprive.
Appellant’s Brief (Dovan Appeal) at 4-5 (trial court answers and unnecessary
capitalization omitted).
Appellant raises one issue at appeal number 2599 EDA 2019, which
relates to his theft by deception crime against Minich at docket number
3704.
1. Was there insufficient evidence to find Appellant guilty of
theft by deception because the Commonwealth failed to prove
beyond a reasonable doubt that Appellant had the intent to
permanently deprive.
Appellant’s Brief (Minich Appeal) at 4 (trial court answers and unnecessary
capitalization omitted).
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All of Appellant’s issues challenge the sufficiency of the evidence
supporting his convictions. “Whether sufficient evidence exists to support
the verdict is a question of law; our standard of review is de novo and our
scope of review is plenary.” Commonwealth v. Giron, 155 A.3d 635, 638
(Pa. Super. 2017). Further, to address a challenge to the sufficiency of the
evidence, we must 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. We may
not weigh the evidence or substitute our judgment for that of the
fact-finder. Additionally, the evidence at trial need not preclude
every possibility of innocence, and the fact-finder is free to
resolve any doubts regarding a defendant's guilt 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. When evaluating the credibility and weight of the
evidence, the fact-finder is free to believe all, part or none of the
evidence. For purposes of our review under these principles, we
must review the entire record and consider all of the evidence
introduced.
Commonwealth v. Carr, 227 A.3d 11, 19 (Pa. Super. 2020). Additionally,
the Commonwealth may sustain its burden of proving every element of the
crime beyond a reasonable doubt by means of wholly circumstantial
evidence. Commonwealth v. Gonzalez, 109 A.3d 711, 716 (Pa. Super.
2015).
Issues 1 and 2 in Dovan Appeal: Burglary
In order to prove Appellant committed burglary under subsection
3502(a)(2) of the Crimes Code, the Commonwealth had to prove that “with
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the intent to commit a crime therein,” Appellant “enter[ed] a building or
occupied structure, or separately secured or occupied portion thereof that is
adapted for overnight accommodations in which at the time of the offense
no person is present[.]” 18 Pa.C.S. § 3502(a)(2). “It is a defense to
prosecution for burglary if … [t]he actor is licensed or privileged to enter.”
Id. at § 3502(b).
Appellant does not dispute that he entered the home of the Dovans,
but argues that the Commonwealth failed to prove that he entered with the
intent to commit a crime therein. Appellant’s Brief (Dovan Appeal) at 11.
According to Appellant, he entered the home to retrieve two beers that
belonged to one of his workers, which meant he did not enter with intent to
commit a crime. Id. (citing Commonwealth v. Cavanaugh, 133 A.2d 288
(Pa. Super. 1957)). Wayne Dovan did not testify; only Julie Dovan did, and
Appellant contends that Julie’s testimony did not establish that the beer
belonged to her and her husband, since Julie only stated that they kept beer
in the basement, and did not affirmatively state that the beer belonged to
the Dovans. Id.
Appellant further argues that the Commonwealth failed to prove that
he did not have license or privilege to enter the home, i.e., that he was
someone who naturally was expected to be inside the home in the natural
course of his duties. Id. at 14 (citing Commonwealth v. Corbin, 446 A.2d
308 (Pa. Super. 1982) (concluding janitor exceeded scope of his privilege
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when janitor used his work keys to enter outside his working hours to steal
items from the building)). Appellant emphasizes that he entered the home
during the workday, and the Dovans gave him a key and provided him with
the security code so that he could enter the home while he was working on
site to use the bathroom, check for notes from the Dovans, or perform odd
jobs requested by the Dovans. Id. at 15-16.
The trial court found that Appellant entered the home at 12:55 p.m.,
took two beers from the basement belonging to the Dovans, and left two
minutes later carrying the beers. Trial Court Opinion, 12/20/2019, at 10. It
credited Julie’s testimony that Appellant was not permitted in the home
except for certain circumstances and was not permitted to take their
alcoholic beverages. Id. On the other hand, it rejected as not credible
Appellant’s testimony that the beers belonged to his worker, particularly
because when confronted by the Dovans subsequent to the incident,
Appellant lied, claiming he entered their home to retrieve screws and nails.
Id. at 10-11. Accordingly, the trial court determined that Appellant entered
the home with the intent to commit theft. Id. at 10.
The trial court also rejected the notion that Appellant was privileged to
enter the home based on Julie’s testimony that he did not have general
access to the home, and was only permitted to enter when she requested in
advance for him to perform specific work in the home, which was not the
case that day. Id. at 11. The trial court emphasized that it had been two
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months since the last time Appellant performed work on the property, and
he had been ignoring the Dovans’ attempts to reach him. Id. at 12. That
and Appellant’s attempts to mislead the Dovans when they confronted him
evidenced he was not there to perform work and instead intended to commit
theft of the beer.
Upon review of the record, we find that it supports the trial court’s
findings and analysis. When viewing the evidence in the light most favorable
to the Commonwealth, it is clear that the Commonwealth proved the
elements of burglary beyond a reasonable doubt. The footage from the
security camera shows that Appellant only spent two minutes inside and left
carrying the beer bottles, suggesting that he entered with the specific
purpose of taking the beer. Appellant’s story changed between his initial
explanation to the Dovans that he was getting screws and his claim at trial
that the beer belonged to his worker, and they had entered the home earlier
in the day to put the beer in the refrigerator to chill it for an after-work
drink. He claims that they entered and exited several times throughout the
day, yet the Dovans’ security camera only alerted them that someone
entered the house once. Accordingly, there was sufficient evidence to
establish Appellant’s intent to enter the home to commit the crime of theft of
the beer.
Regarding the defense of privilege, this Court has explained that a
“person is privileged, within the meaning of [the] burglary statute, if he may
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naturally be expected to be on the premises often and in the natural course
of his duties or habits.” Corbin, 446 A.2d at 311. A person with privilege
“may still commit burglary” if he enters a building when “he would not
reasonably be expected to be present.” Id. It is the Commonwealth’s
burden to prove beyond a reasonable doubt that the person was not licensed
or privileged to enter the building. Id. at 309. Privilege can be extinguished
by a deterioration in relations and a period of separation. See
Commonwealth v. Woods, 638 A.2d 1013, 1015-16 (Pa. Super. 1994).
We agree with the trial court that the Commonwealth established
sufficient evidence to demonstrate that Appellant did not have a privilege to
enter the residence at the time of the incident, notwithstanding his
possession of a key and the security code. Julie’s testimony established that
Appellant was not granted access to the house carte blanche. Furthermore,
contrary to Appellant’s attempt to paint his entry as part of his normal work
day, prior to the incident he had not shown up to the work site in two
months and was dodging the Dovans’ attempts to reach him. Thus, the
Commonwealth sufficiently established that he did not possess a general
privilege to enter and he was not reasonably expected to be present at the
time of the incident. See Corbin, 446 A.2d at 311; see also Woods, 638
A.2d at 1015-16. Accordingly, we affirm his judgment of sentence as to his
burglary conviction.
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Issue 3 in Dovan Appeal: Deceptive or Fraudulent Business Practices
Appellant next challenges the sufficiency of the evidence supporting
his deceptive or fraudulent business practices conviction. Appellant’s Brief
(Dovan Appeal) at 17-19. “Proof of deceptive or fraudulent business
practices requires that a defendant (1) with a wrongful intent to deceive; (2)
‘in the course of business;’ (3) ‘sells, offers or exposes for sale, or delivers
less than the represented quantity of any commodity or service.’”
Commonwealth v. Hill, 140 A.3d 713, 718 (Pa. Super. 2016) (citing 18
Pa.C.S. § 4107(a)(2)); see also Commonwealth v. Eline, 940 A.2d 421,
433 (Pa. Super. 2007) (holding that “fraud, which includes a wrongful intent
to deceive, is an element of [deceptive or fraudulent business practices]”).
A defendant may defend against such a charge by proving by a
preponderance of the evidence “that his conduct was not knowingly or
recklessly deceptive.” 18 Pa.C.S. § 4107(b).
Appellant contends that in order to be guilty of this crime, a
“defendant must accept the payment with the intent of not completing the
agreed[-]upon work.” Appellant’s Brief (Dovan Appeal) at 17. He argues
that the Commonwealth’s evidence was insufficient to establish his intent;
according to Appellant, “there was overwhelming evidence presented that
Appellant had a genuine belief from the time the contract was entered into
up until the day he was fired that he would comply with the contract[.]” Id.
Appellant claims the project was complex and became overwhelming, but he
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always intended to finish. Id. at 18. He points to his completion of what he
classifies as “substantial” work on the project as evidence that he never
intended to defraud the Dovans when he accepted partial payment on the
project. Id. at 18-19.
The trial court offered the following analysis of Appellant’s contentions.
The trial court found that Appellant had a negative balance in his bank
account when he accepted the Dovans’ very large project, which then
prompted him to accept large sums of money from the Dovans, which he
“immediately diverted to his personal use.” Trial Court Opinion,
12/20/2109, at 13. A review of his bank account shows that he used very
little of the money “to pay for items that could potentially be construction-
related expenses.” Id. Despite accepting $15,000 from the Dovans to
purchase cedar siding, his bank account does not reflect a purchase for the
siding, and he neither delivered the siding nor refunded the money. Id. at
13-14. Appellant initially did some work in the fall of 2015, but “no
significant work” had been performed on the project 20 months later in the
spring of 2017. Id. at 14. He was “absent from the property for extended
periods of time and maintained only sporadic contact with the Dovans.” Id.
Appellant never returned any of the $42,000 to the Dovans, made “spurious
excuses” for delays, and over a year and half later, not only had the barn
not been renovated, but it was “reduced to such poor condition that it
collapsed.” Id. Based on these facts, the trial court concluded that the
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Commonwealth set forth sufficient evidence to establish that Appellant
intended to deceive the Dovans when he took multiple large payments from
them with the intent of not purchasing or delivering the materials promised
or completing the work agreed upon. Id. at 13.
In Eline, the defendant accepted money to install swimming pools for
a large number of customers and never delivered the pools. Eline had
argued that given more time, he would have completed the swimming pools
he was contracted to install; in other words, he was slow, but not fraudulent.
Eline, 940 A.2d at 431.
Eline was convicted of deceptive or fraudulent business practices. We
affirmed Eline’s conviction, concluding that the Commonwealth proved that
Eline did not intend to complete the agreed-upon work when he accepted
deposits and sometimes second payments. We found it persuasive that
Eline did not begin or complete the installation of pools with a number of
customers within the agreed-upon timeframe, became non-responsive to
inquiries by the customers after acceptance of their money, and did not
refund any portion of monies paid after customers complained. Id. at 433.
We also noted that while Eline completed one swimming pool for one
customer, this partial work did not exonerate him considering he did not
deliver a deck that was part of the contract, did not refund her money, and
did not respond to her inquiries. Id.
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Similarly, when viewing the evidence in the instant case in the light
most favorable to the Commonwealth, we conclude the same result is
warranted here. The Commonwealth introduced sufficient evidence
demonstrating that, based on the totality of the circumstances, one could
infer that, notwithstanding some initial work on the project, Appellant
accepted money for services he did not intend to complete and materials he
did not intend to deliver. We agree with the trial court that the combination
of Appellant’s negative cash flow, immediate transfers to his personal
account following large sums paid by the Dovans, failure to purchase the
cedar siding despite being provided specific sums to do so, lack of
construction purchases, long absences from the project, failure to remain in
consistent contact and to respond to the Dovans’ inquiries, sporadic
approach to the work, constant excuses, and failure to make substantial
progress on the project after 20 months, all demonstrate his wrongful intent
to deceive the Dovans. Accordingly, we affirm his conviction for deceptive
and fraudulent business practices.
Issue 4 in Dovan Appeal: Theft by Deception
Appellant challenges the sufficiency of the evidence for his conviction
of theft by deception relating to his contract to restore the Dovans’ barn.
Appellant’s Brief (Dovan Appeal) at 20-21. “A person is guilty of theft if he
intentionally obtains or withholds property of another by deception.” 18
Pa.C.S. § 3922(a). To deceive within the meaning of the statute, the person
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must intentionally “create[] or reinforce[] a false impression, including false
impressions as to law, value, intention or other state of mind.” Id. at
§ 3922(a)(1). “[D]eception 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[.]” Id. To render a failure to perform under a contract
a crime, the factfinder must infer from facts other than the non-completion
that the defendant “never intended to perform his part of the contract.”
Commonwealth v. Gallo, 373 A.2d 1109, 1111 (Pa. 1977); see also
Commonwealth v. Layaou, 405 A.2d 500 (Pa. Super. 1979) (holding that
the Commonwealth must prove that the defendant did not intend to perform
at the time he accepted payment under a contract; because Layaou began
the project, the evidence showed Layaou originally intended to perform the
work and simply later abandoned it).
Appellant argues that because he began work on the home, the
Commonwealth did not prove that he deceived the Dovans by creating or
reinforcing a false impression that he would perform the work when he did
not intend to do so. Appellant’s Brief (Dovan Appeal) at 20-21 (citing
Layaou, supra). He emphasizes the lack of end date in the contract and
points to alleged delays in obtaining a permit and his personal family
problems, and claims he always intended to perform the work up until the
day he was fired. Id. at 21.
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We are not persuaded by Appellant’s argument. Unlike Layaou,
where the Commonwealth simply relied upon Layaou’s non-completion of the
project, the Commonwealth here introduced a variety of evidence indicating
that Appellant created a false impression that he would completely restore
the barn and purchase certain supplies, such as the cedar siding, but in
actuality he did not intend to complete the project or purchase the supplies
when he accepted the various deposits from the Dovans. As explained in
more detail supra, while Appellant may have performed some work for the
Dovans, the haphazard work he completed over the course of 20 months
paled in comparison to the work he promised the Dovans he would complete
at the outset. Moreover, the disparity between promises and his
performance was occurring alongside the backdrop of his negative cash flow,
immediate transfers to his personal account following deposits, failure to
purchase large-scale supplies and other construction purchases, lengthy
absences, and dodging of the Dovans’ inquiries. Accordingly, we conclude
the Commonwealth introduced sufficient evidence of his deception, and
affirm his conviction for theft by deception at appeal number 2603 EDA
2019.
Issue 1 in Minich Appeal: Theft by Deception
As with his theft by deception conviction regarding the Dovans’ barn,
Appellant challenges the sufficiency of the evidence proving that he deceived
Minich as to the building of her chicken coop. Once again, Appellant argues
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he always intended to finish the project, and points to the lack of end date in
the contract, obstacles such as inclement weather interfering with outdoor
work, and the completion of some of the contractually-obligated work.
Appellant’s Brief (2599 EDA 2019) at 10-12.
The trial court offered the following analysis of Appellant’s sufficiency
claim.
As was the case with the Dovans, [Appellant] accepted the
[$1303.00] down payment followed by an immediate work
stoppage and, thereafter, maintained only sporadic contact with
[Minich]. Although the project was a simple one [Appellant] had
promised he would complete in a few days, he performed only a
minimal amount of work, never delivered the promised
materials, never completed any aspect of the project[,] and
never refunded any of the down payment money. Based on the
totality of the circumstances, [the trial court] finds that the
evidence was sufficient to establish intent.
Trial Court Opinion, 12/20/2019, at 15.
Upon review, we determine that the trial court’s findings are supported
by the record. Although there was no end date to the project, Appellant
represented that the project was a simple one with a short turn-around
time, yet only completed a sliver of the promised work before dodging
Minich’s inquiries. He did not return Minich’s money upon demand or
complete the project, misled Minich about the status of repairs to the gate,
and did not return Minich’s gate upon demand. Accordingly, we conclude
the Commonwealth introduced sufficient evidence of his deception, and
affirm his conviction for theft by deception at appeal number 2599 EDA
2019.
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J-S24035-20 & J-S24036-20
Judgment of sentence affirmed.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 9/11/20
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