HomeMy WebLinkAboutCP-21-CR-0225-2007
COMMONWEALTH : IN THE COURT OF COMMON PLEAS OF
: CUMBERLAND COUNTY, PENNSYLVANIA
:
: CHARGES: (1) THEFT BY DECEPTION
v. : (2) DECEPTIVE BUSINESS
: PRACTICES
:
JASON SHIREY :
ROBLYER :
OTN: K422418-3 : CP-21-CR-0225-2007
IN RE: DEFENDANT’S OMNIBUS PRETRIAL MOTION
OLER, November 13, 2007.
In this criminal case involving a home repair, 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 29,
2007. For the reasons stated in this opinion, the motion will be denied.
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
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Practices. A preliminary hearing was held by the Honorable Thomas A. Placey,
Magisterial District Judge, on January 17, 2007.
1
Criminal Complaint, filed November 20, 2006.
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
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Section 4107(a)(2), (6) of the Crimes Code. Defendant was arraigned on April 3,
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2007.
On May 10, 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 Count 2—Deceptive Business Practices, with respect to the
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second count. A hearing on the motion was held by the undersigned judge on
August 29, 2007.
At the hearing, the evidence presented consisted of (a) a copy of the
preliminary hearing transcript containing testimony of the elderly alleged victim
and testimony of the affiant, a detective employed by the Cumberland County
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District Attorney’s Office, (b) copies of checks written by the alleged victim to
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Defendant in the amounts of $3,300.00, $3,500.00 and $4,000.00, and (c) an
expert report of Jonathan A. Snyder, P.E., BCO, CCO, CCCA, a professional
2
Commonwealth’s Ex. 3 (preliminary hearing transcript), hearing on Defendant’s omnibus
pretrial motion, August 29, 2007, 141. Citations to pages in this exhibit will hereinafter be given
as N.T. __, Preliminary Hearing.
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 Motion, filed May 10, 2007.
7
Commonwealth’s Ex 3 (preliminary hearing transcript), hearing on Defendant’s omnibus
pretrial motion, August 29, 2007.
8
Commonwealth’s Ex. 1 (copies of checks), hearing on Defendant’s omnibus pretrial motion,
August 29, 2007.
2
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“building code official, plans examiner, and building inspector.” The evidence
presented, if credited by a fact-finder, supported the following factual conclusions:
The alleged victim, Lawrence Zegarelli, was disabled as a result of an
1011
injury in the Second World War, which left him in a coma for three months.
At the time of the alleged offenses, he owned a home in which he resided in
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Mechanicsburg (Silver Spring Township), Cumberland County, Pennsylvania.
As the result of the recommendation of a person doing electrical work upon
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his home, Mr. Zegarelli engaged Defendant to perform certain carpentry work,
14
including ceiling work, in his basement for a price of $6,600.00. Defendant
requested and received checks from Mr. Zegarelli for $3,300.00 (May 18, 2005)
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and $3,500.00 (June 1, 2005) in connection with this job.
Prior to completion of the basement work, Mr. Zegarelli engaged
Defendant to perform carpentry work on his garage, for a quoted price of
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$4,000.00. Mr. Zegarelli gave Defendant a check for this amount on June 6,
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2005.
18
Defendant failed to diligently prosecute the work on the basement, and
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made a joke of Mr. Zegarelli’s complaints in this regard. The work that was
9
Commonwealth’s Ex. 2 (expert’s report), hearing on Defendant’s omnibus pretrial motion,
August 29, 2007.
10
N.T. 10, Preliminary Hearing.
11
N.T. 27, Preliminary Hearing.
12
N.T. 8, 11, Preliminary Hearing.
13
N.T. 15, Preliminary Hearing.
14
N.T. 17, 30, 38-39, Preliminary Hearing.
15
N.T. 32-33, Preliminary Hearing; Commonwealth’s Ex. 1 (copies of checks), hearing on
Defendant’s omnibus pretrial motion, August 29, 2007.
16
N.T. 19-21, Preliminary Hearing.
17
N.T. 21, Preliminary Hearing; Commonwealth’s Ex. 1 (copies of checks), hearing on
Defendant’s omnibus pretrial motion, August 29, 2007.
18
N.T. 35, Preliminary Hearing.
19
N.T. 35, Preliminary Hearing.
3
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performed in the basement was of poor quality, below code, and overpriced.
Most significantly, Defendant misappropriated the $4,000.00 payment made for
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garage work, falsely claiming that it had been intended to be applied to the
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basement ceiling work. Defendant never performed the garage work.
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), quoting Commonwealth v. Morman, 373 Pa. Super.
360, 367, 541 A.2d 356, 360 (1988).
“[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 (1983) (plurality opinion). “Proof beyond a reasonable doubt is not
required, nor is the criterion to show that proof beyond a reasonable doubt is
20
Commonwealth’s Ex. 2 (expert’s report).
21
N.T. 38, Preliminary Hearing.
22
N.T. 85, Preliminary Hearing.
23
N.T. 35, Preliminary Hearing.
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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
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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) (emphasis deleted). 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, where the Commonwealth’s evidence tended to show
that Defendant had taken advantage of an elderly homeowner by (a) obtaining
$6,800.00 in return for shoddy, over-priced, below-code carpentry work on his
basement that had been quoted at $6,600.00, (b) obtaining an additional $4,000.00
on the pretense that it would cover work on his garage, and (c) refusing to perform
the garage work on the basis of a false claim that the $4,000.00 had been intended
to be applied to the basement job, it is believed that the “words, conduct [and]
circumstances” placed in evidence by the Commonwealth were sufficient to
constitute a prima facie case of violation of Section 3922 of the Crimes Code.
24
Act of December 6, 1972, P.L. 1482, §1, 18 Pa. C.S. §3922(a)(1), (3).
5
With respect to this holding, it must be emphasized that the court is expressing no
opinion as to the truth of Commonwealth’s evidence.
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
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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
26
evidence that his conduct was not knowingly or recklessly deceptive.”
Initially, the mens rea required for this offense was not explicitly stated in
27
the statute, although an affirmative defense existed where “the defendant
prove[d] by a preponderance of the evidence that his conduct was not knowingly
28
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).
25
Act of December 6, 1972, P.L. 1482, §1, as amended, 18 Pa. C.S. §4107(a)(1), (6) (2007
Supp.).
26
Act of December 6, 1972, P.L 1482, §1, as amended, 18 Pa. C.S. §4107(b) (2007 Supp.).
27
Act of December 6, 1972, P.L. 1482, §1, 18 Pa. C.S. §4107(a).
28
Act of December 6, 1972, P.L. 1482, §1, 18 Pa. C.S. §4107(b).
6
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
29
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
30
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, it is believed that evidence tending to show that
Defendant, in a business transaction, had taken advantage of an elderly
homeowner by (a) obtaining $6,800.00 in return for shoddy, over-priced, below-
code carpentry on his basement that was quoted at $6,600.00, (b) obtaining an
additional $4,000.00 on the pretense that it would cover work on his garage, and
(c) refusing to perform the garage work on the basis of a false claim that the
$4,000.00 had been intended to be applied to the basement job, was sufficient to
show, prima facie, that Defendant had delivered less than the represented quantity
31
of a promised service in contravention of Section 4107(a) of the Crimes Code.
Any potential constitutional infirmity in the statute perceived by the trial judge as
to the burden of proof as to mens rea can be avoided by an instruction in
accordance with Section 302(c) of the Crimes Code.
For the foregoing reasons, the following order will be entered:
29
Act of April 5, 2004, P.L. 211, No. 26, §1, 18 Pa. C.S. §4107(a).
30
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).
31
As noted in the text with respect to the charge of Theft by Deception, in so holding the court is
expressing no opinion as to the truth of the Commonwealth’s evidence.
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ORDER OF COURT
th
AND NOW, this 13 day of November, 2007, upon consideration of
Defendant’s omnibus pretrial motion in the form of a habeas corpus petition and a
motion to dismiss, and for the reasons stated in the accompanying opinion, the
omnibus pretrial motion is denied, without prejudice to Defendant’s right to
request a point for charge as to Count 2 (Deceptive Business Practices) in
accordance with Section 302(c) of the Crimes Code.
BY THE COURT,
s/ J. Wesley Oler, Jr.
J. Wesley Oler, Jr., J.
Derek R. Clepper, Esq.
Senior Assistant District Attorney
Charles P. Mackin, Esq.
3400 Trindle Road
Camp Hill, PA 17011
Attorney for Defendant
8
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COMMONWEALTH : IN THE COURT OF COMMON PLEAS OF
: CUMBERLAND COUNTY, PENNSYLVANIA
:
: CHARGES: (1) THEFT BY DECEPTION
v. : (2) DECEPTIVE BUSINESS
: PRACTICES
:
JASON SHIREY :
ROBLYER :
OTN: K422418-3 : CP-21-CR-0225-2007
ORDER OF COURT
th
AND NOW, this 13 day of November, 2007, upon consideration of
Defendant’s omnibus pretrial motion in the form of a habeas corpus petition and a
motion to dismiss, and for the reasons stated in the accompanying opinion, the
omnibus pretrial motion is denied, without prejudice to Defendant’s right to
request a point for charge as to Count 2 (Deceptive Business Practices) in
accordance with Section 302(c) of the Crimes Code.
BY THE COURT,
______________________
J. Wesley Oler, Jr., J.
Derek R. Clepper, Esq.
Senior Assistant District Attorney
Charles P. Mackin, Esq.
3400 Trindle Road
Camp Hill, PA 17011
Attorney for Defendant