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HomeMy WebLinkAboutCP-21-CR-0152-2008 COMMONWEALTH : IN THE COURT OF COMMON PLEAS OF : CUMBERLAND COUNTY, PENNSYLVANIA : V. : : SCOTT M. CARLSON : CP-21-CR-0152-2008 IN RE: POST-SENTENCE MOTION OF DEFENDANT OPINION AND ORDER OF COURT Bayley, J., March 5, 2009:-- September 10, 2008, On defendant, Scott M. Carlson, was convicted by a jury 1 on counts of criminal attempt to theft by deception, exceeding $2,000, criminal 2 conspiracy to theft by deception, exceeding $2,000, criminal solicitation to tampering 3 with public records or information, criminal conspiracy to tampering with public records 45 or information, criminal solicitation to tampering with or fabricating physical evidence, 6 criminal conspiracy to tampering with or fabricating physical evidence, and obstruction 7 December 30, 2008 of administration of law or other governmental functions. On , on __________ 1 18 Pa.C.S. §§ 901, 3922(a)(1), (3). 2 18 Pa.C.S. §§ 903(a)(1), 3922(a)(1), (3). 3 18 Pa.C.S. §§ 902, 4911. 4 18 Pa.C.S. §§ 903(a)(1), 4911. 5 18 Pa.C.S. §§ 902, 4910. 6 18 Pa.C.S. §§ 903(a)(1), 4910. 7 18 Pa.C.S. §§ 5101, 306. CP-21-CR-0152-2008 the count of criminal conspiracy to theft by deception, a felony in the third degree, defendant was sentenced to pay the costs of prosecution and undergo imprisonment in the Cumberland County Prison for a term of not less than four months nor more than twenty-three months. On the count of criminal conspiracy to tampering with public records or information, a felony in the third degree, defendant was sentenced to pay the costs of prosecution, a fine of $500 and undergo imprisonment in the Cumberland County Prison for a term of not less than three months nor more than twenty-three months to run concurrent to the first sentence. On the remaining five counts for which defendant was convicted, he was sentenced to pay the costs of prosecution. On January 9, 2009 , defendant filed a post-sentence motion pursuant to Pa.R.Crim.P. 720. The issues raised are ready for decision. The evidence in a light most favorable to the Commonwealth was as follows. Sarah Haselhorst, an E-4 communications specialist in the United States Army, was married with three children. In the late summer of 1997, she met defendant, Major Scott M. Carlson, who was the Executive Officer of her Battalion. By the latter part of November 1997 they had a sexual relationship. Haselhorst gave birth to a daughter Alysha on August 25, 1998. Haselhorst’s husband had a vasectomy approximately two months before she became pregnant. A DNA test showed that her husband was not Alysha’s father. Defendant acknowledged to Sarah Haselhorst that he was Alysha’s father. He set up an allotment which began with $150 a month child support. He subsequently raised the allotment to $250 and then $400. In the spring of 2006, -2- CP-21-CR-0152-2008 Haselhorst asked defendant to raise the amount to $600. When he did not respond, she commenced a child support action against him in Virginia on December 5, 2006. By this time, defendant was a Colonel and a student at the United States Army War College in Carlisle, Cumberland County. A court in Virginia transferred the support case to the Court of Common Pleas of Cumberland County. The transmittal set forth that the father named on the birth certificate was not defendant and that paternity had 8 to be established. An order was entered directing defendant to appear in the Domestic Relations Office for a child support conference on February 14, 2007. Defendant phoned a Domestic Relations Officer requesting a continuance. He said that he was going to contest paternity and wanted testing. Subsequently, a time was set for him to appear in the Domestic Relations Office to provide a sample of his blood for paternity testing. Colonel Bruce Adkins was a student in the same class at the United States Army War College, where he met defendant. Defendant asked Adkins to take the blood test for him and Adkins agreed. Defendant drove Adkins into Carlisle on April 24, 2007. He gave Adkins his driver’s license which was needed for identification, saying that it was a bad picture and the support personnel would not realize that it was not him. Adkins left all of his identification in defendant’s vehicle and went into the support office. He identified himself as Scott Carlson. He was photographed and fingerprinted, his blood __________ 8 Defendant stopped making voluntary child support payments to Haselhorst after December, 2006. -3- CP-21-CR-0152-2008 was drawn, and he signed Carlson’s name on the documentation accompanying the transaction. He then left the support office and went to defendant’s vehicle. He gave defendant back his driver’s license and got all of his identification, after which defendant drove him away. Blood was drawn from Haselhorst and Alysha in Virginia. DNA tests on all three samples excluded defendant as the father of Alysha. An order of court was entered setting forth that defendant was not the biological father of Alysha Haselhorst, and the child support action was dismissed. Thereafter, the photograph taken of Adkins at the support office was shown to Haselhorst who said that it was not Carlson. Adkins was subsequently identified. He confessed his involvement in posing as Carlson when blood was drawn from him on April 24, 2007. Adkins was arrested on charges similar to those filed against defendant. He testified for the Commonwealth at the trial of defendant. I. Defendant maintains that he is entitled to a judgment of acquittal. The test for determining the sufficiency of the evidence, viewing the evidence in a light most favorable to the verdict winner, is whether the jury reasonably could have concluded that all of the elements of the crime were established beyond a reasonable doubt. Commonwealth v. Robinson, 721 A.2d 344 (Pa. 1998). The credibility of witnesses is Id. for the jury which can believe all, part, or none of the evidence. Defendant maintains generally that he is entitled to a judgment of acquittal -4- CP-21-CR-0152-2008 because the theory of the Commonwealth’s case “simply did not make sense.” That nonsensical averment does not require any analysis. Defendant specifically challenges the sufficiency of the evidence to support his convictions for criminal conspiracy, obstruction of administration of law or other governmental functions, and theft. As to criminal conspiracy, he avers: “The essence of a criminal conspiracy is a common understanding, no matter how it came into being, that a particular criminal objective be accomplished.” Commonwealth v. Johnson, 719 A.2d 778, 784-85 (Pa. Super. 1998) (en banc) (emphasis added). In this case, the Commonwealth offered no evidence that Mr. Adkins, the only alleged co-conspirator, had any criminal intent. In fact, the Commonwealth argued, and Mr. Adkins testified, that he did not think that he was doing anything illegal. Because there is no evidence of any shared criminal intent, the evidence is insufficient to support the Conspiracy convictions. Pursuant to 18 Pa.C.S. Section 903, the jury was charged: A person is guilty of conspiracy with another person to commit a crime if with the intent of promoting or facilitating its commission he: (1) Agrees with such other person or persons that they or one of will engage in conduct which constitutes such crime them or an attempt or solicitation to commit such crime, or (2) agrees to aid such other person in planning or commission of such a crime or of an attempt or solicitation to commit such crime. In order to be guilty of conspiracy to commit a crime there must have been an overt act in pursuance of such conspiracy done by defendant or by a person with whom defendant conspired. (Emphasis added.) There was evidence that showed that defendant and Adkins agreed that Adkins would represent himself as defendant while providing blood that was being taken for -5- CP-21-CR-0152-2008 the purpose of determining whether defendant was the father of Alysha Haselhorst. In furtherance of that agreement Adkins did exactly that; he engaged in conduct which constituted a crime. The self-serving testimony of Adkins that he did not think that what he was doing was illegal does not affect the illegality of defendant’s conduct in conspiring with Adkins to commit an actual crime for which an overt act in pursuance of that conspiracy was committed. As to obstruction of administration of law or other governmental function, defendant avers: A person can only be liable as an accomplice if the crime “is committed by . . . the conduct of another person for which he is legally accountable.” 18 Pa. C.S. A. § 306 (emphasis added). To commit an Obstruction of Law or Other Government Function, a person must “intentionally obstruct [] . . . the administration of law or other governmental function by . . . any [] unlawful act . . . .” 18 Pa.C.S.A. § 5101. In this case, the Commonwealth presented no evidence that Mr. Adkins intended to obstruct any government function. In fact, Mr. Adkins testified that he did not believe the DRO was a government building at all. Moreover, no obstruction occurred because, as explained above, the paternity test was immaterial to any child custody action, and the order that he submit to a paternity test was unlawful. In addition, Obstruction of Law is the only crime that the Commonwealth claimed was actually committed as all other convictions were for inchoate crimes. Accordingly, the Commonwealth did not put forth any evidence that the law was obstructed by an “unlawful act.” Pursuant to 18 Pa.C.S. Sections 5101, 306, the jury was charged: A principal is a person who commits a crime. An accomplice is a person -6- CP-21-CR-0152-2008 who aids and abets the commission of that crime. A person is guilty as an accomplice of obstructing administration of law or other government function if that person aids or abets the principal who intentionally obstructs, impairs or perverts the administration of law or other governmental function by interference or any other unlawful act. The Commonwealth alleges that David Adkins while aided and abetted by defendant intentionally interfered with and committed an unlawful act or acts in presenting himself to the Domestic Relations Office, a governmental function, during paternity testing as Scott M. Carlson and committing the unlawful acts of tampering with public records or information and tampering with or fabricating physical evidence. A person acts intentionally if it is his conscious object and purpose to do something. The governmental function was the paternity testing that defendant, as an accomplice of Adkins, intentionally obstructed by Adkins misrepresenting himself as defendant. Therefore, the evidence was sufficient to support the conviction of criminal conspiracy to obstruction of administration of law or other governmental functions. As to theft by deception, defendant avers: In addition, the Commonwealth’s evidence is legally insufficient to show that [defendant] solicited or attempted to commit a Theft by Deception. theft Under 18 Pa.C.S.A. § 3922(a), “A person is guilty of if he intentionally obtains or withholds property of another by deception.” (emphasis added). Because [defendant’s] money was not the “property of another,” he could not have attempted or conspire to commit a Theft by Deception. Under the Commonwealth’s interpretation, every person who does not pay a debt would commit a theft. See 18 Pa.C.S.A. § 3921 (defining theft as “exer[ting] unlawful control over, movable property of another with intent to deprive him thereof . . . [or] over, immovable property of another . . . with intent to benefit himself. . . .”). -7- CP-21-CR-0152-2008 Pursuant to 18 Pa.C.S. Sections 3922(a)(1), 901 and 903, the jury was charged as follows on attempted theft by deception and conspiracy to theft by deception: A principal is a person who commits a crime. An accomplice is a person who aids and abets the commission of that crime. A person is guilty as an accomplice to attempted theft by deception if he aids and abets a principal who intentionally attempts to withhold property of The claimed property attempted to be withheld another by deception. is court ordered child support for Sarah Haselhorst. A person deceives if he intentionally creates or reinforces a false impression. In this case it is claimed that the false impression is that defendant is not the biological father of Aylsha Haselhorst. A person acts intentionally when it is his conscious object or purpose to do something. A person attempts to do something when, with intent to commit a specific crime, he does any act which constitutes a substantial step toward the commission of that crime. If defendant conspired with Bruce Adkins to theft by deception and an overt act was performed by either defendant or Bruce Adkins or both in an attempt to theft by deception, defendant would be guilty of conspiracy The claimed theft by deception attempted is the to theft by deception. withholding of property of another by deception. The property claimed as withheld is court ordered child support for Sarah Haselhorst. A person deceives if he intentionally creates or reinforces a false impression. The false impression claimed is that defendant is not the biological father of Aylsha Haselhorst. A person acts intentionally if it is his conscious object and purpose to do something. (Emphasis added.) The Crimes Code, at 18 Pa.C.S. Section 3922, provides: (a) Offense defined.—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; -8- CP-21-CR-0152-2008 (2) prevents another from acquiring information which would affect his judgment of a transaction; 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 stands in a fiduciary or confidential relationship. The attempted theft by deception and conspiracy to theft by deception was the withholding of property (court ordered child support) of another (Sarah Haselhorst) by deception. Therefore, there was sufficient evidence to support defendant’s convictions for attempted theft by deception and criminal conspiracy to theft by deception. Defendant avers that “[n]o Theft by Deception can occur if the falsity is to matters having no pecuniary significance, and [t]he misrepresentation was immaterial to the action for child support because [defendant] was liable for child support, regardless of biology, based on paternity by estoppel.” To argue that court ordered child support is of no pecuniary significance is absurd. Based on the evidence, the jury found that the child support withheld exceeded $2,000. As to paternity by estoppel, the evidence was that the support officer did not know that defendant had made private payments of child support for Alysha. The transmittal from the court in Virginia set forth that paternity had to be established. Defendant stated to his support officer that he was contesting paternity and he wanted testing. Whether the Commonwealth could have proceeded to establish defendant’s liability for child support on the basis of paternity by estoppel was not relevant. Clearly, defendant, acting as an accomplice with and in conspiracy with Adkins, created a false record as to a paternity test which resulted in -9- CP-21-CR-0152-2008 the support action by Haselhorst being dismissed. Defendant avers that the prosecutor, by pursuing these criminal charges, acted as a debt collector for the Domestic Relations Office in violation of the due process clause in the United States Constitution and the Constitution of Pennsylvania. This is another absurd position taken by defendant. The prosecutor has full authority to seek the conviction of defendant for all the crimes he was charged, including theft. When there is a theft there is a loss to the victim caused by the criminal conduct of the 9 defendant. The criminal prosecution was not over a debt. II. Defendant maintains that he is entitled to a new trial because: This Court declined to instruct the jury on paternity by estoppel. This Court likewise declined to instruct the jury on the concept of materiality, an element of theft. As explained above, if the jury found that [defendant] was estopped from denying paternity, then the test would be immaterial and he could not have committed a Theft by Deception. Further, if the jury found that the DRO lacked authority to order the test due to paternity by estoppel, then the [defendant] could not have obstructed any lawful government function, fabricated any even potentially lawful or admissible evidence, or fabricated any lawful government record. Accordingly, the [defendant] did not have a fair trial as the jury was not charged on such a critical element to his defense. The court’s charge did instruct the jury on the concept of materiality. It stated: __________ 9 It appears from the written post-sentence motion that defendant maintains that this prosecution was improper because the part-time district attorney who prosecuted him is also legal counsel to the Cumberland County Support Office. Defendant made no pre- trail motion to disqualify the Assistant District Attorney or otherwise disqualify the District Attorney of Cumberland County from prosecuting him. Any such issue is waived. -10- CP-21-CR-0152-2008 “The claimed theft by deception attempted is the withholding of property of another by deception. The property claimed as withheld is court ordered child support to Sarah Haselhorst.” The rest of the averments in support of a new trial are a rehash of the averments that defendant made in support of his motion for a judgment of acquittal. For the reasons previously set forth, they have no merit. -11- CP-21-CR-0152-2008 III. Defendant avers: Incarceration is impermissible unless “probation would be inappropriate” 42 Pa.C.S.A. § 9724. Under 42 Pa.C.S.A. § 9722, this court must accord weight in favor of an order of probation to the following highly relevant facts: (1) no one was seriously harmed; (2) the victim has been fully compensated for any injury; (3) [defendant] has no criminal record; (4) as paternity is now established, the underlying criminal conduct is extremely unlikely to recur; and (5) the [defendant’s] impeccable character is evidence that he will not violate any law in the future. Therefore, [defendant] should not have received any period of incarceration because probation is clearly appropriate. Defendant has a jaundice view of what harm is. He stopped making voluntary child support payments to Haselhorst after December, 2006. As a result of the crimes he committed, her child support action was dismissed. It was only reinstated after defendant’s crimes were discovered. Apparently, defendant thinks that he has impeccable character because he was a Colonel in the United States Army and provided many years of service to the government. Defendant conveniently forgets that while he was married and a Major in the United States Army, he had a sexual liaison with a married enlisted soldier in his chain of command. Character is not defendant’s forte. The minimum sentence guidelines for the felony three criminal conspiracy to theft by deception are: mitigated, none; standard, RS-9; and aggravated, 12. For the felony three criminal conspiracy tampering with public record or information they are mitigated, none; standard, RS-3; and aggravated, 6. The court was in receipt of a pre- -12- CP-21-CR-0152-2008 sentence investigation report at the time the sentences were entered. At sentencing, the court told defendant: The sentences of imprisonment I imposed are Pennsylvania guideline sentences for a crime, in my opinion, that struck at the heart of the government’s responsibility of securing child support for those entitled. If the result sought would have been realized, the crime would have had a dramatic impact on the life of the victim. I feel the sentence under the circumstances is consistent with the protection of the public and consistent with the rehabilitative needs of defendant. These sentences were consistent with the protection of the public, the gravity of the offenses as they related to the impact on the life of the victim and on the community, in this case the government, and the rehabilitative needs of defendant. They were appropriate and within the discretion of the court. ORDER OF COURT AND NOW, this day of March, 2009, the motion of defendant IS DENIED. for post-sentence relief, By the Court, Edgar B. Bayley, J. Derek Clepper, Esquire For the Commonwealth Dennis E. Boyle, Esquire For Defendant :sal -13- COMMONWEALTH : IN THE COURT OF COMMON PLEAS OF : CUMBERLAND COUNTY, PENNSYLVANIA : V. : : SCOTT M. CARLSON : CP-21-CR-0152-2008 IN RE: POST-SENTENCE MOTION OF DEFENDANT ORDER OF COURT AND NOW, this day of March, 2009, the motion of defendant IS DENIED. for post-sentence relief, By the Court, Edgar B. Bayley, J. Derek Clepper, Esquire For the Commonwealth Dennis E. Boyle, Esquire For Defendant :sal