HomeMy WebLinkAboutCP-21-CR-0224-2007
COMMONWEALTH : IN THE COURT OF COMMON PLEAS OF
: CUMBERLAND COUNTY, PENNSYLVANIA
:
v. : CHARGES: (1) THEFT BY DECEPTION
: (2) DECEPTIVE BUSINESS
: PRACTICES
DANIEL SHANNON :
THORPE :
OTN: K422420-5 : CP-21-CR-0224-2007
IN RE: DEFENDANT’S OMNIBUS PRETRIAL MOTION
OLER, J., December 5, 2007.
In this criminal case involving electrical work performed by Defendant in
the alleged victim’s home, Defendant has been charged with Theft by Deception
and Deceptive Business Practices. For disposition at this time is an omnibus
pretrial motion filed by Defendant in the form of a habeas corpus petition and a
motion to dismiss.
The habeas corpus petition challenges the sufficiency of evidence to
support a prima facie case as to each charge. The motion to dismiss challenges the
constitutionality of a statutory provision relating to the crime of deceptive business
practices which states that “it is a defense to prosecution if the defendant proves
by a preponderance of the evidence that his conduct was not knowingly or
recklessly deceptive.”
A hearing on Defendant’s omnibus pretrial motion was held on August 23,
2007. For the reasons stated in this opinion, the motion will be granted with
respect to its habeas corpus aspect.
STATEMENT OF FACTS
As the result of conduct alleged to have occurred in the spring, summer and
fall of 2005, in Silver Spring Township, Cumberland County, Pennsylvania,
Defendant was charged with Theft by Deception and Deceptive Business
1
Practices. A preliminary hearing was held by a magisterial district judge on
January 17, 2007.
2
Following the preliminary hearing, the case was bound over for court. On
March 29, 2007, the Commonwealth filed an information charging Defendant with
one count of Theft by Deception in violation of Section 3922(a)(1), (3) of the
3
Crimes Code and one count of Deceptive Business Practices in violation of
4
Section 4107(a)(2), (6) of the Crimes Code. Defendant was arraigned on April 3,
5
2007.
On May 11, 2007, Defendant filed an omnibus pretrial motion for relief in
the form of a Petition for Writ of Habeas Corpus with respect to each count and a
Motion To Dismiss Charge of Deceptive or Fraud[u]lent Business [P]ractices—
6
Violation of Due Process, with respect to the second count. The latter motion
was based upon an allegedly improper statutory imposition of the burden of proof
7
as to mens rea upon the defendant. A hearing on the motion was held by the
undersigned judge on August 23, 2007.
At the hearing, the evidence presented included a copy of the preliminary
hearing transcript containing testimony of the alleged victim and testimony of the
affiant, a detective employed by the Cumberland County District Attorney’s
8
Office.
1
Criminal Complaint, filed November 20, 2006.
2
Defendant’s Omnibus Pre-trial Motion, Ex. B (preliminary hearing transcript), at 141
(hereinafter N.T. __, Preliminary Hearing). The transcript of the preliminary hearing, as attached
to Defendant’s omnibus pretrial motion, was made part of the record for purposes of the court’s
disposition of Defendant’s motion. N.T. 4, hearing on Defendant’s omnibus pretrial motion,
August 23, 2007.
3
Act of December 6, 1972, P.L. 1482, §1, 18 Pa. C.S. §3922(a)(1), (3).
4
Act of December 6, 1972, P.L. 1482, §1, as amended, 18 Pa. C.S. §4107(a)(2), (6).
5
Acknowledgment of Arraignment Pursuant to Cumberland County Local Rule 303-2, filed April
3, 2007.
6
Defendant’s Omnibus Pre-trial Motion, filed May 11, 2007.
7
Defendant’s Omnibus Pre-trial Motion, at 5.
8
See note 2 supra.
2
The testimony of the alleged victim, Lawrence Zegarelli, at the preliminary
hearing, as it related to Defendant, may be summarized as follows. Mr. Zegarelli
9
had been disabled as the result of an injury in the Second World War, which left
10
him in a coma for three months. At the time of the alleged offenses, he owned a
home in which he resided in Mechanicsburg (Silver Spring Township),
11
Cumberland County, Pennsylvania.
Mr. Zegarelli contacted Defendant in 2005 as a result of Defendant’s
12
advertisement in a newspaper for the purpose of engaging him to perform
13
electrical work on his home. As of the date of the preliminary hearing in January
14
of 2007, he did not recall the nature of the electrical work he wanted done.
15
However, he “explained everything at the beginning what [he] wanted done” and
16
“didn’t ask [Defendant] to do extra things.” There was no written contract for
17
the work.
The original estimate, on May 12, 2005, by Defendant for the work to be
18
performed was $2,100.00. An estimate for additional work in the amount of
19
$370.00, dated January 18, 2006, was also provided by Defendant. However,
checks issued by Mr. Zegarelli to Defendant exceeded the amount of the
9
N.T. 10, Preliminary Hearing.
10
N.T. 27, Preliminary Hearing.
11
N.T. 8, 11, Preliminary Hearing.
12
N.T. 10-11, Preliminary Hearing.
13
N.T. 11, Preliminary Hearing.
14
N.T. 11-12, Preliminary Hearing.
15
N.T. 72, Preliminary Hearing.
16
N.T. 72, Preliminary Hearing.
17
N.T. 13, Preliminary Hearing.
18
N.T. 69, Preliminary Hearing.
19
N.T. 70, Preliminary Hearing.
3
20
estimates, for reasons which Mr. Zegarelli could not recall as of the preliminary
21
hearing date.
Mr. Zegarelli would pay Defendant by check each time work was
22
performed, and Defendant would provide receipts for the checks. In Mr.
23
Zegarelli’s opinion, Defendant “did his job.” On the other hand, he noted that
Defendant “didn’t turn the light around,” that a doorbell did not work, that there
24
were “two wires hanging out on each side of the door,” and that a house fan
25
which was supposed to be installed was “[s]till laying in the garage.” He
26
conceded that he had not complained about anything except the doorbell, and
27
that he always paid what Defendant requested for the work without objection. In
2006 Mr. Zegarelli contacted an attorney, “mainly because of [carpentry work
performed by another person who also performed repairs on his house, who was
28
separately charged with criminal offenses in connection with that work].”
The testimony of the affiant, Cumberland County Detective Earl Bock, at
the preliminary hearing, as it pertained to Defendant, may be summarized as
follows. In the course of the affiant’s investigation of these matters, Defendant
29
had sent him information as to the electrical work he had done for Mr. Zegarelli.
30
The affiant had also received a report from an expert in electrical work, and the
20
N.T. 71, Preliminary Hearing.
21
N.T. 71, Preliminary Hearing.
22
N.T. 14, Preliminary Hearing.
23
N.T. 66, Preliminary Hearing.
24
N.T. 67, Preliminary Hearing.
25
N.T. 59, Preliminary Hearing.
26
N.T. 63, Preliminary Hearing.
27
N.T. 63, Preliminary Hearing.
28
N.T. 62, Preliminary Hearing.
29
N.T. 103-04, Preliminary Hearing.
30
N.T. 81, 93, Preliminary Hearing.
4
affiant had observed that the breakers on an electrical panel in Mr. Zegarelli’s
31
home had not been labeled.
Further evidence presented by the Commonwealth at the hearing on
Defendant’s omnibus pretrial motion consisted of (a) additional testimony of the
alleged victim, (b) testimony of a Pennsylvania-licensed professional engineer and
32
building inspector, and (c) exhibits in the form of estimates by Defendant, copies
33
of checks issued by the alleged victim to Defendant, invoices issued by
34
Defendant, and a report prepared by the aforesaid civil engineer/building
35
inspector. Defendant’s strenuous objection to the receipt of any evidence in
addition to that which had been received by the magisterial district judge at the
3637
preliminary hearing was overruled.
The additional testimony of Mr. Zegarelli at the hearing on Defendant’s
38
omnibus pretrial motion was to the effect that he was eighty years old, that he
31
N.T. 91-92, Preliminary Hearing.
32
Commonwealth’s Ex. 1, hearing on Defendant’s omnibus pretrial motion, August 23, 2007.
33
Commonwealth’s Ex. 2, hearing on Defendant’s omnibus pretrial motion, August 23, 2007.
34
Commonwealth’s Ex. 3, hearing on Defendant’s omnibus pretrial motion, August 23, 2007.
35
Commonwealth’s Ex. 4, hearing on Defendant’s omnibus pretrial motion, August 23, 2007.
36
N.T. 5, 23, 34, hearing on Defendant’s omnibus pretrial motion, August 23, 2007.
37
N.T. 7, 34, hearing on Defendant’s omnibus pretrial motion, August 23, 2007.
The Pennsylvania Superior Court addressed this issue in Commonwealth v. Morman, 373
Pa. Super. 360, 365-66, 541 A.2d 356, 359 (1988), as follows:
At the hearing on [Defendant’s] habeas corpus petition, the trial court
believed its role was to examine the evidence presented at his
preliminary hearing and, on that basis, determine whether [Defendant’s]
custody was a lawful one. We find that the scope of evidence which a
trial court may consider in determining whether to grant a pretrial writ of
habeas corpus is not limited to the evidence as presented at the
preliminary hearing. On the contrary, we find that the Commonwealth
may present additional evidence at the habeas corpus stage in its effort to
establish at least prima facie that a crime has been committed and that
the accused is the person who committed it. Our conclusion in the
instant case is a result of our review of the relevant case law as well as
the underlying purpose of the writ of habeas corpus in the pretrial setting.
38
N.T. 10, hearing on Defendant’s omnibus pretrial motion, August 23, 2007.
5
39
had been unemployed since suffering an injury in World War II, and that he had
lived in his single-family home in Mechanicsburg, Cumberland County,
40
Pennsylvania for 20 years. As the result of seeing an advertisement in a
41
newspaper called the Guide, according to his testimony, Mr. Zegarelli contacted
Defendant in June of 2005, and asked him to perform electrical work in his
42
basement and kitchen.
At various points in his testimony, Mr. Zegarelli described electrical work
of Defendant as follows:
Q Okay. Now, Mr. Zegarelli, tell the judge about this electrical
work that you wanted to have done. What did you want to have done to
your basement?
A I wanted a light in each room.
Q Okay.
A A light in the kitchen.
Q Okay.
A An outlet in that first room on the wall in the same—on the
other wall. And then he put another outlet near the fireplace.
Q Now—
A And a switch up on top there to control the light and the
outlet. And then as you go out, he put another box there for the switch,
and then he changed the service panel.
Q Let’s talk about the service panel. Are you talking about the
electrical box?
A Yeah. He suggested that I change that. So I went along with
him, and I said, how much do you want for that, and I paid him.
Q Okay. And was that ultimately—was the box changed?
A Yes.
Q Okay. And some point was there discussion about putting in
a wall?
A Yeah.
Q For a light? Was there a discussion about that?
39
N.T. 10, hearing on Defendant’s omnibus pretrial motion, August 23, 2007.
40
N.T. 9, hearing on Defendant’s omnibus pretrial motion, August 23, 2007.
41
N.T. 12-13, hearing on Defendant’s omnibus pretrial motion, August 23, 2007.
42
N.T. 13-14, hearing on Defendant’s omnibus pretrial motion, August 23, 2007.
6
43
A Yeah. A short wall.
* * * *
Q Okay. Okay. Now, you said that the work started in the
basement and then some outlets in the kitchen. Was there any other
discussion about doing any other work either inside or outside your house?
A Well, he was supposed to wire some lights on the outside, but
he never did that.
Q Did you pay him to do that?
A He asked for a check, and I gave him a check and he said he
would be back to wire the lights up because there’s a certain piece in there,
it doesn’t make the light level up against the wall, and he had to get a little
bigger one. It was too short.
Q It was too short. Did he ever come back to do that?
A He never came back to do that.
Q Okay.
A And I paid him, you know.
Q How about any other areas in the house? We talked about the
basement now. The kitchen. You said the garage. Was there anywhere
else in your house that you—that he agreed to do work for you?
A No. In the bedroom he changed a receptacle for me.
Q Okay.
A In one of the bedrooms. That’s the only thing I believe he did
in the bedroom.
Q How about the attic? Was there any work done to the attic?
A He didn’t do anything in there, but in the back of the garage
he did put a switch and a light and a receptacle in for me. It’s an addition
on the garage.
Q Okay. Did you purchase an attic fan or pay money for an
attic fan?
A No. He bought—I gave him the money, and he bought the
attic fan, but never installed it. It’s still in the box.
Q Did he run electric to an attic fan for you?
A He didn’t do anything like that.
Q Did you pay him to do that work, if you recall?
A Well, he says that it has to be framed out, you know, for the
fan. I says, I framed it out for that window, and that fan’s not any bigger
44
than that window, and I says it should fit right in there . . . .
43
N.T. 18-19, hearing on Defendant’s omnibus pretrial motion, August 23, 2007.
44
N.T. 20-21, hearing on Defendant’s omnibus pretrial motion, August 23, 2007.
7
The work to be performed was initially memorialized, Mr. Zegarelli stated,
in an “Estimate” submitted by Defendant, dated May 12, 2005, describing the
work as follows:
R/R RECEPTACLE IN B.R.
INSTALL GFI RECPTACLE IN UP BATH
“ “ 2’ BB HEAT “ “ “
INSTALL 3 RECESSED LIGHTS IN KITCHEN
“ “ GFI
BASEMENT
BATH FAN / LIGHT
“ “ 2 RECESSED LIGHTS
LAUNDRY—MOVE LIGHT AND OTHER WIRES
INSTALL DRYER WASHER RECEPTACLES
NEW LIGHT, RECEPTACLE, CABLE AND PHONE CIRCUITS
IN FUTURE WALLS
GARAGE-NEW RECEPTACLES (1 GFI), LIGHT W/ SW. CIRCUITS
EXTERIOR-INSTALL NEW COACH LIGHTS
R/ R MAIN PANEL
PRICE –DOES NOT INCLUDE RE-HAB OF EXISTING CICUITS
@ OUTSIDE WALLS INTO CONDUIT / ‘WIREMOLD’ – PROPOSE
45
@ TIME /MATERIAL
In this document, the estimated cost of the labor and materials for the work
46
described was $2,100.00.
From June 14, 2005, through October 3, 2005, Mr. Zegarelli wrote eight
47
checks to Defendant for electrical work, totaling $3,985.00. Each check
indicated generally that the payment was for electrical work, except that a check
for $335.00 on August 23, 2005, indicated that it was for “Electrical Work more to
be done” and a check for $245.00 on October 3, 2005, indicated that it was for
48
“One light in kitchen & 2 receptical & move one receptical for dryer.”
45
N.T. 14-15, hearing on Defendant’s omnibus pretrial motion, August 23, 2007;
Commonwealth’s Ex. 1, hearing on Defendant’s omnibus pretrial motion, August 23, 2007.
46
Commonwealth’s Ex. 1, hearing on Defendant’s omnibus pretrial motion, August 23, 2007. A
second “Estimate,” dated January 18, 2006, the source and relevance of which are not clear from
the record of the hearing on Defendant’s omnibus pretrial motion, contained an additional figure
of $370.00 and the notation that it was for “Existing Basement Receptacle Circuit in Wiremold
(Completed).” Commonwealth’s Ex. 1, hearing on Defendant’s omnibus pretrial motion, August
23, 2007.
47
N.T. 15, hearing on Defendant’s omnibus pretrial motion, August 23, 2007; Commonwealth’s
Ex. 2, hearing on Defendant’s omnibus pretrial motion, August 23, 2007.
48
Commonwealth’s Ex. 2, hearing on Defendant’s omnibus pretrial motion, August 23, 2007.
8
Each check was receipted by Defendant by an invoice, sometimes
49
describing the work performed for the payment. Each invoice represented the
50
work as being “completed in a substantial workmanlike manner.” With specific
reference to the date, amount and work covered, the invoices read as follows:
6-14-05 $800.00 On account for electrical work
6-29-05 $800.00 Pd. on account
7/7/05 $500.00 On account
7-27-05 $500.00 Paid on account
No date $245.00 Install light over sink
” 2 receptacles on counter
” New dryer receptacle
Labor & materials
8-2-05 $380.00 For this day’s time and material
Items purchased 3 s /m lights
1 ceiling fan light
1 whole house fan w/ louver
8-23-05 $335 Account balance $235
Today – material/labor 100
$335
8-29-05 $425 For work on this date
Install 2 old work recessed lights/trims.bulbs
” wash/dry/oven receptacle
” bath f/l vent to attic
51
Material/labor 7.0 hr $425
The testimony of the professional engineer and building inspector at the
hearing on Defendant’s omnibus pretrial motion was given by Jonathan Snyder,
who stated that he was employed by Effective Technical Applications, Inc., a
52
“third party certified agency.” He stated that he had examined the property
53
owned by Mr. Zegarelli on two occasions, and found the main electric panel and
49
N.T. 17, hearing on Defendant’s omnibus pretrial motion, August 23, 2007; Commonwealth’s
Ex. 3, hearing on Defendant’s omnibus pretrial motion, August 23, 2007.
50
Commonwealth’s Ex. 3, hearing on Defendant’s omnibus pretrial motion, August 23, 2007.
51
Commonwealth’s Ex. 3, hearing on Defendant’s omnibus pretrial motion, August 23, 2007.
52
N.T. 24, hearing on Defendant’s omnibus pretrial motion, August 23, 2007.
53
N.T. 26, hearing on Defendant’s omnibus pretrial motion, August 23, 2007.
9
54
basement wiring noncompliant with the “electric code.” More specifically, he
testified as follows:
A There were receptacle locations required that were not
installed. There were receptacle—or circuit protection devi[c]es required,
ground fault circuit protectors and arc-fault circuit protectors that were not
installed. Ground fault circuit protectors are required in kitchen areas,
bathroom areas. Arc-fault circuit protectors are required in bedroom areas.
There were wiring methods, that’s attachment of wiring, that was not—
that was less than code requirements.
Q Okay.
A There were no smoke detectors installed in the bedrooms in
the basement. There were—there was no smoke detector installed just
adjacent to the bedrooms in the basement, and there were no smoke
detectors installed—this is a one story ranch home. The electric code
requires smoke detectors to be installed since they are accessible spaces.
There were no smoke detectors installed for the bedrooms on the first
floor, and no smoke detector installed just adjacent outside of those
55
bedrooms. That’s a summary of the violations.
* * * *
Q And in talking about the electrical box where the circuit
breakers were, did you notice anything particular about that?
A Yes. The main panel—well, the existing panel had been a
federal specific panel. A []new [S]quare D panel was installed. Therefore,
the circuit breaker protection devices on each circuit—existing circuit in
the house had to be changed because of the change in the brand of
equipment. The circuits were not labeled, and since the breakers were
changed, that meant each circuit was worked on, and the circuits were not
brought up to code in the existing portion of the house. There was also—
the panel was also installed under a drain pipe, and it was not protected
56
from potential condensation or water damage.
Mr. Snyder also opined that the price which Defendant charged for the
57
work performed “was significantly overpriced by as high as 100 percent.” In
response to a question of the court, Mr. Snyder said that he was not aware of any
express contractual requirement that smoke detectors be installed by Defendant,
but that he assumed that “the electrician was retained to provide electric work to
54
N.T. 26-27, hearing on Defendant’s omnibus pretrial motion, August 23, 2007.
55
N.T. 27, hearing on Defendant’s omnibus pretrial motion, August 23, 2007.
56
N.T. 28, hearing on Defendant’s omnibus pretrial motion, August 23, 2007.
57
N.T. 29, hearing on Defendant’s omnibus pretrial motion, August 23, 2007.
10
58
code.” He also stated that “[t]he Uniform Construction Code mandates that
when a—in the case of electric work, when a circuit is worked on, it must be
59
brought up to code.” However, no evidence was presented by the
Commonwealth that the municipality in which the affected property was situated
had adopted either the “electric code” or the “Uniform Construction Code” to
which the witness referred.
A “preliminary inspection report” produced by Mr. Snyder was also
60
introduced into evidence. With respect to electrical matters, the report suggested
that the district attorney determine whether the municipality had adopted the
61
Uniform Construction Code in connection with its enactment of a building code.
It also emphasized the absence of smoke detectors in various areas of the
62
residence. The report further questioned the adequacy of the electrical work
performed as follows:
? The new main electric service panel installation does not comply with
code requirements for the following reasons:
? No circuits were labeled.
? Arc-Fault Breakers were not installed for either the basement or
first floor bedrooms.
? No Ground-Fault Circuit Interrupter (GFCI) breaker was installed
for the basement kitchen countertop receptacles. The new panel
is improperly installed; it is directly under a drain pipe. No
provision was made to assure the electrical equipment would
remain dry in the event of a pipe leak.
? The new electric system ground rod is improperly installed; it
projects above grade approximately six (6) inches. The ground
rod shall be flush with or below grade.
? The new grounding conductor from the new panel to the ground
rod is improperly installed, a portion is above grade. The
conductor shall be buried.
? The wire gauge of all circuits greater than 15 amps shall be
checked for code compliance.
58
N.T. 30, hearing on Defendant’s omnibus pretrial motion, August 23, 2007.
59
N.T. 30, hearing on Defendant’s omnibus pretrial motion, August 23, 2007.
60
Commonwealth’s Ex. 4, hearing on Defendant’s omnibus pretrial motion, August 23, 2007.
61
Commonwealth’s Ex. 4, at 5, hearing on Defendant’s omnibus pretrial motion, August 23,
2007.
62
Commonwealth’s Ex. 4, at 6, hearing on Defendant’s omnibus pretrial motion.
11
? A new main panel was installed with a new and different brand of
circuit overload protection for each existing circuit. Note: A circuit
includes the overload protection device. Therefore, since the
overload protection device was changed, the circuit was worked on,
and each circuit must comply with current code requirements.
In this instance the main panel was changed from Federal Pacific to
Square D necessitating the replacement of all circuit breakers. The
Following circuits were worked on and were at a minimum, required
to be checked by the electrician for code compliance and labeled:
? First floor kitchen
? First floor kitchen appliance circuits
? Basement kitchen appliance circuits
? First floor laundry room circuit
? First floor dryer circuit
? Basement laundry room circuit
? Basement dryer circuit
? First floor bathrooms circuit
? First floor bedrooms circuits
? Exterior front and rear receptacle circuit
? Garage receptacle circuits
? Heating equipment circuit
? Convenience receptacle circuits
? Convenience lighting circuits
? Air conditioning circuit
? Egress lighting circuits
? Power distribution of the basement electrical work does not meet
code requirements for the following reasons:
? Basement Kitchen:
¦ No receptacle within 6’-0” from start of wall.
¦ No receptacle on wall greater than 2’-0” long.
¦ No receptacle 2’-0” maximum from right end of
countertop.
¦ No receptacle 4’-0” maximum from receptacle to
right of sink.
¦ Cable to surface mounted refrigerator receptacle not
attached to framing within 12” of receptacle box.
? Basement Bedroom #1:
¦ No Arc-Fault receptacle protection.
? Basement Bedroom #2:
¦ No Arc-Fault receptacle protection.
¦ No receptacle within 6’-0” from start of wall.
? Basement Living Room:
¦ No receptacle on wall greater than 2’-0” long.
¦ No receptacle within 6’-0” from start of wall.
? Basement Hall:
¦ No receptacle on hall wall greater than 10’-0” long.
? New Bathroom Hall Wall:
¦ Cables routed along the edge of framing members are
closer than 1 ¼” to the edge of the framing member
allowed by code.
¦ Cables routed through holes in framing are closer to
12
the framing member surface than 1 ¼” and have no
nail plate protection required by code.
? Basement Laundry Room:
¦ Cables routed along the edge of framing members are
closer than 1 ¼” to the edge of the framing member
allowed by code.
¦ Cables routed through holes in framing members are
closer to the framing member surface than 1 ¼” and
have no nail plate protection required by code.
¦ Cable supports (staples) are more than 4’-6” apart.
Note: I believe that if the wiring in the new walls that
was concealed from inspection is revealed it will also have
63
code violations.
DISCUSSION
Theft by Deception. “[I]n the pre-trial setting, the focus of the habeas
corpus hearing is to determine whether sufficient Commonwealth evidence exists
to require a defendant to be held in government ‘custody’ until he may be brought
to trial. . . . A pre-trial petition for a writ of habeas corpus thus is similar in
purpose to a preliminary hearing.” Commonwealth v. Owen, 397 Pa. Super. 507,
508-09, 580 A.2d 412, 413 (1990) (citations omitted).
“[I]t is the burden of the Commonwealth at a preliminary hearing to
establish at least prima facie that a crime has been committed and the accused is
the one who committed it.” Commonwealth v. Mullen, 460 Pa. 336, 341, 333 A.2d
755, 757 (1975).
A prima facie case is established when “the Commonwealth produces
evidence of each of the material elements of the crime charged and establishes
sufficient probable cause to warrant the belief that the accused committed the
offense.” Commonwealth v. Santos, 583 Pa. 96, 101, 876 A.2d 360, 363 (2005)
(citation omitted). To sustain its burden, the Commonwealth must produce
evidence that, if accepted as true, would warrant a trial judge in permitting the
case to go to a jury. Commonwealth v. Wojdak, 502 Pa. 359, 367-68, 466 A.2d
991, 995-96 (1983) (plurality opinion). “Proof beyond a reasonable doubt is not
63
Commonwealth’s Ex. 4, at 7-8, hearing on Defendant’s omnibus pretrial motion, August 23,
2007.
13
required, nor is the criterion to show that proof beyond a reasonable doubt is
possible if the matter is returned for trial.” Commonwealth v. Snyder, 335 Pa.
Super. 19, 23, 483 A.2d 933, 935 (1984).
Under Section 3922(a) of the Crimes Code, it is provided as follows:
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; . . . or
(3) fails to correct a false impression which the
deceiver previously created or reinforced, or which the
deceiver knows to be influencing another to whom he
64
stands in a fiduciary or confidential relationship.
In prosecutions under Section 3922 of the Crimes Code, “[t]he
Commonwealth must often rely on words, conduct or circumstances to infer an
intent to defraud.” Commonwealth v. Atwood, 411 Pa. Super. 137, 149, 601 A.2d
277, 283 (1991). In the context of a home repair operation, in an appropriate case
relevant circumstances may include the respective ages of the parties to the
transaction, business experience and mental capacity. Commonwealth v. Joy, 253
Pa. Super. 177, 384 A.2d 1288 (1978).
In the present case, the Commonwealth’s evidence tended to show that
Defendant’s ultimate charges exceeded his original estimate, but that Defendant
had performed work in addition to that to which the original estimate had applied.
It also showed that the work generally was of inferior quality and overpriced to an
unspecified degree, but that the alleged victim had paid Defendant for the work
without complaint as he observed its execution, received accurate, receipted
invoices for the payments, and acknowledged in testimony that Defendant “did his
job.” Allegations that the work was below code in some respects, even if relevant,
were not supported by evidence of the municipality’s adoption of any such code.
64
Act of December 6, 1972, P.L. 1482, §1, 18 Pa. C.S. §3922(a)(1), (3).
14
Under these circumstances, the court is constrained to agree with Defendant’s
counsel that the alleged victim’s recourse against Defendant is more properly in
the civil courts than in a criminal forum.
Deceptive Business Practices. The legal principles relating to habeas
corpus petitions, preliminary hearings, and a prima facie case have been stated
above. Under Section 4107(a) of the Crimes Code, it is provided as follows:
A person commits an offense if, in the course of business, the
person: . . .
(2) sells, offers or exposes for sale, or delivers less
than the represented quantity of any commodity or
service; . . . [or]
(6) makes or induces others to rely on a false or
misleading written statement or sale of property or
65
services . . . .
Section 4107(b) of the Crimes Code provides that “[i]t is a defense to
prosecution under this section if the defendant proves by a preponderance of the
66
evidence that his conduct was not knowingly or recklessly deceptive.”
Initially, the mens rea required for this offense was not explicitly stated in
67
the statute, although an affirmative defense existed where “the defendant
prove[d] by a preponderance of the evidence that his conduct was not knowingly
68
or recklessly deceptive.” However, it was understood that the requisite mens rea
encompassed a fraudulent intent. Commonwealth v. Melano, 267 Pa. Super. 560,
407 A.2d 51 (1979). This construction was consistent with the general rule that
“[w]hen the culpability sufficient to establish a material element of an offense is
not prescribed by law, such element is established if a person acts intentionally,
knowingly or recklessly with respect thereto.” Act of December 6, 1972, P.L.
1482, §1, 18 Pa. C.S. §302(c).
65
Act of December 6, 1972, P.L. 1482, §1, as amended, 18 Pa. C.S. §4107(a)(1), (6) (2007
Supp.).
66
Act of December 6, 1972, P.L 1482, §1, as amended, 18 Pa. C.S. §4107(b) (2007 Supp.).
67
Act of December 6, 1972, P.L. 1482, §1, 18 Pa. C.S. §4107(a).
68
Act of December 6, 1972, P.L. 1482, §1, 18 Pa. C.S. §4107(b).
15
For a brief period in 2004, the requisite mens rea was explicitly included in
Section 4107(a) as follows: “A person commits an offense if the person
intentionally, knowingly or recklessly engaged in any of the following of the
69
following acts in the course of business . . . .” However, later in that year
legislation was passed which deleted this explicit expression of mens rea, but
preserved an affirmative defense to the crime as quoted above in Section
70
4107(b).
Finally, it is a general rule of statutory construction that, where possible, a
statute will be construed in such as manner as to avoid a potential constitutional
infirmity. See Commonwealth v. Story, 497 Pa. 273, 440 A.2d 488 (1981); Act of
December 6, 1972, P.L. 1339, §3, 1 Pa. C.S. §1922(3).
In the present case, as noted previously, the Commonwealth’s evidence
tended to show that Defendant’s ultimate charges exceeded his original estimate,
but that Defendant had performed work in addition to that to which the original
estimate had applied. It also showed that the work generally was of inferior quality
and overpriced to an unspecified degree, but that the alleged victim had paid
Defendant for the work without complaint as he observed its execution, received
accurate, receipted invoices for the payments, and acknowledged in testimony that
Defendant “did his job.” Allegations that the work was below code in some
respects, even if relevant, were not supported by evidence of the municipality’s
adoption of any such code. As with the charge of Theft by Deception, the court is
constrained to agree with Defendant’s counsel that the charge of Deceptive
71
Business Practices has not been sufficiently supported in an evidentiary sense.
For the foregoing reasons, the following order will be entered:
69
Act of April 5, 2004, P.L. 24, No. 26, §1, 18 Pa. C.S. §4107(a).
70
Act of November 30, 2004, P.L. 1592, §1, 18 Pa. C.S. §4107(a); Act of December 8, 2004, P.L.
1781, §1, 18 Pa. C.S. §4107(a).
71
In view of the court’s disposition of the charge on this ground, it is unnecessary to considered
Defendant’s constitutional challenge to the statute in question.
16
ORDER OF COURT
th
AND NOW, this 5 day of December, 2007, upon consideration of
Defendant’s omnibus pretrial motion, and for the reasons stated in the
accompanying opinion, the charges against Defendant are dismissed.
BY THE COURT,
s/ J. Wesley Oler, Jr.
J. Wesley Oler, Jr., J.
Derek R. Clepper, Esq.
Senior Assistant District Attorney
Robert N. Tarman, Esq.
106 Walnut Street
Harrisburg, PA 17101
Attorney for Defendant
17
18
COMMONWEALTH : IN THE COURT OF COMMON PLEAS OF
: CUMBERLAND COUNTY, PENNSYLVANIA
:
v. : CHARGES: (1) THEFT BY DECEPTION
: (2) DECEPTIVE BUSINESS
: PRACTICES
DANIEL SHANNON :
THORPE :
OTN: K422420-5 : CP-21-CR-0224-2007
ORDER OF COURT
th
AND NOW, this 5 day of December, 2007, upon consideration of
Defendant’s omnibus pretrial motion, and for the reasons stated in the
accompanying opinion, the charges against Defendant are dismissed.
BY THE COURT,
_________________
J. Wesley Oler, Jr., J.
Derek R. Clepper, Esq.
Senior Assistant District Attorney
Robert N. Tarman, Esq.
106 Walnut Street
Harrisburg, PA 17101
Attorney for Defendant