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HomeMy WebLinkAboutCP-21-CR-318-2003; 322-2003COMMONWEALTH EILEEN C. BINGAMAN OTN: H630354-4 IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA CHARGE: (1) THEFT BY UNLAWFUL TAKING OR DISPOSITION (2) CRIMINAL CONSPIRACY (3) THEFT BY FAILURE TO MAKE REQUIRED DISPOSITION OF FUNDS RECEIVED (4) RECEIVING STOLEN PROPERTY CP-21-CR-0318-2003 COMMONWEALTH IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA LON H. BINGAMAN OTN: H630355-5 CHARGE: (1) THEFT BY UNLAWFUL TAKING OR DISPOSITION (2) CRIMINAL CONSPIRACY (4) RECEIVING STOLEN PROPERTY CP-21-CR-0322-2003 IN RE: OPINION PURSUANT TO PA. R.A.P. 1925 OLER, J., June 16, 2004. In these criminal cases, which were joined for trial, a husband and wife were found guilty following a jury trial of various economic offenses in connection with the depletion of over $600,000.00 in life savings of an elderly woman. The 100-year-old victim now resides in an assisted living facility; her financial condition has been aptly described by one Defendant as "tapped out.''~ ~ N.T. 259, Trial, September 16, 2003 (hereinafter N.T. ~. Both Defendants have appealed from the judgments of sentence.2 The bases for the appeal of Defendant Eileen C. Bingaman have been set forth in a statement of matters complained of on appeal as follows: 1. The Defendant alleges that the Court erred in determining that Bertha Trout [the victim] was competent and able to testify. Due to Miss Trout's age and inability to remember, the ability to cross examine or confront the witness against Eileen Bingaman was seriously compromised. 2. The Court erred in determining that the statute of limitations had not expired with regard to the charges against Eileen Bingaman. 3. There was insufficient evidence as a matter of law for Eileen Bingaman to have been found guilty of all of the charges. 4. The verdict of the jury was not supported by the weight of the evidence. 5. The Court erred in instructing the jury on the duties of an agent on a power of attorney. The Court further erred during jury instructions with the Court's instruction on rights of joint owners of property. The nearly identical bases for the appeal of Defendant Lon H. Bingaman have been set forth in his statement of matters complained of on appeal as follows: 1. The Defendant alleges that the Court erred in determining that Bertha Trout [the victim] was competent and able to testify. The ability to cross examine or confront the witness against Lon Bingaman was compromised due to Ms. Trout's age and inability to remember. 2. The Court erred in determining that the statute of limitations had not expired with regard to the charges against Lon Bingaman. 3. There was insufficient evidence as a matter of law for Lon Bingaman to have been found guilty of the charges of theft by : Although each Defendant has characterized the appeal as being from an order denying a postsentence motion, each appeal is technically from the judgment of sentence. See Commonwealth v. Par/ante, 2003 PA Super. 169 n.3, 823 A.2d 927, 929 n.3 (2003) (citing Commonwealth v. Chamberlain, 442 Pa. Super. 12, 15-16, 658 A.2d 395,397 (1995)). Each Defendant received concurrent prison sentences of sixteen months to five years less one day. Orders of Court, December 2, 2003. The sentences were at the high end of the standard range of the sentencing guidelines. Id. s Defendant's statement of matters complained of on appeal, filed April 5, 2004. 2 unlawful taking, conspiracy to commit theft by unlawful taking, conspiracy to commit theft by failure to make required disposition of funds received, conspiracy to commit receiving stolen property, and receiving stolen property. 4. The verdict of the jury was not supported by the weight of the evidence. 5. The Court erred during jury instructions with the Court's instruction of rights of joint owners of property.4 This opinion in support of the judgments of sentence appealed from is written pursuant to Pennsylvania Rule of Appellate Procedure 1925(a). However, the opinion will not address the general challenges to the sufficiency of the evidence contained in the third paragraphs of Defendants' statements of matters complained of on appeal, due to their nonspecific natures.5 STATEMENT OF FACTS The victim in this case is Bertha Lillian Trout,6 a widow,7 who was 100 years old as of August 26, 2003,8 and who has resided at an assisted living facility9 in Mechanicsburg, Cumberland County, Pennsylvania,l° known as Outlook Pointe,~ since July 28, 2000.~2 Defendants are Eileen C. Bingaman, the victim's grandniece,~3 and her Defendant's statement of matters complained of on appeal, filed April 16, 2004. See Commonwealth v. Garofalo, 386 Pa. Super. 363, 365, 563 A.2d 109, 110 (1989) (inefficacy of boilerplate challenges to sufficiency of evidence). N.T. 45. N.T. 48. N.T. 46. N.T. 245. ~O ld' ~ N.T. 50, 231. ~: N.T. 238. ~ N.T. 50, 64. 3 husband,TM Lon H. Bingaman, who reside at 270 Pleasant Hill Road, Lewisberry, York County, Pennsylvania. 15 As a result of numerous financial transactions occurring between July 1, 1997, and February 9, 2001,16 Defendants were charged on December 31, 2002,17 with theft by unlawful taking or disposition, theft by failure to make required disposition of funds received, receiving stolen property, and criminal conspiracy to commit each of those offenses,la As charged, the crimes were all graded as felonies of the third degree.~9 Neither Defendant filed a motion raising the issue of the statute of limitations prior to trial.2° At trial, prior to the jury's receipt of testimony of the victim, Defendants orally requested that a competency hearing be conducted to determine whether Ms. Trout had the requisite capacity to testify.2~ At the hearing, in response to questions, Ms. Trout gave her name,22 age and date of birth,23 residential facility24 and county of domicile,25 and educational background.26 She was aware that the current year was 2003,27 that the ~4 N.T. 50-51. ~5 N.T. 341. 16 See Informations, ~7 N.T. 467. ~8 See Informations, 20 N.T. 468. 2~ N.T. 22. 22 N.T. 23. 23 N.T. 24. 24 N.T. 23. 25 N.T. 24. 26 N.T. 25. 27 N.T. 26. Nos. 03-0318 Crim. T. and 03-0322 Crim. T. (Cumberland Co.). Nos. 03-0318 Crim. T. and 03-0322 Crim. T. (Cumberland Co.). 4 case sub judice involved the theft of her estate by her grandniece,28 and that her estate had once been worth at least $400,000.00.29 She recalled that she had commingled her funds with those of her grandniece,3° she testified that she had never given Defendants permission to spend hundreds of thousands of dollars of her money,3~ and she remembered that the course of theft had begun when she moved into Defendants' residence in 1997.32 She conceded, however, that her memory of 1997 was not good.33 She expressed her understanding of the fact that she would be under oath while testifying at the trial.34 When asked what it meant to testify under oath, she stated that it meant to "[t]ell the truth.''35 At the conclusion of the hearing, the court entered the following order: AND NOW, this 16th day of September, 2003, upon consideration of the request of defense counsel to conduct a hearing as to the competency of [Ms. Trout] for purposes of testimony at this trial and following the said hearing, the Court finds that [she] is and was at the relevant time capable of perceiving accurately, that she is able to express herself so as to be understood, that her memory, although not perfect, is sufficient for purposes of providing testimony, subject to cross-examination, on today's date, and that she sufficiently understands the duty to tell the truth, and[,] consequently, the witness is deemed to be competent.36 37 Both Defendants noted their objections to this finding of competency. 28 N.T. 24. 29 N.T. 27. 3o N.T. 27. 3~ N.T. 30. 32 N.T. 25-26. 33 N.T. 29. 34 N.T. 26. 35 36 Order of Court, September 16, 2003. 37 N.T. 30. 5 Evidence presented by the Commonwealth at trial may be summarized as follows: The victim, Bertha Lillian Trout, was bom in New Jersey on August 26, 1903.38 She graduated from Haddonfield High School in that state,39 and worked for the Keystone Telephone Company and its successors for 45 years,4° marrying in the process4~ and retiring at age 65.42 As a retired widow,43 she lived in Upper Darby, Delaware County, Pennsylvania,44 having through frugal living and saving45 amassed an estate of approximately $700,000.00.46 While thus living in Upper Darby, the victim was induced by her great niece, Defendant Eileen C. Bingaman, to execute a power of attorney in her favor,47 to move in with Defendants48 at their York County, Pennsylvania, residence,49 and to transfer her assets to Defendants' locale.5° Commencing with her move in 1997,~ Defendants were able to consume for their benefit her assets in the amount of approximately $618,000.00 in the course of four years, with the funds coming primarily, although not exclusively,~2 from convenience accounts which the victim had established with her grandniece to 38 N.T. 46. 39 40 N.T. 47-48. 41 N.T. 48. 42 Id. 43 N.T. 49. 44id' 45 N.T. 84, 90. 46 N.T. 107. 47 N.T. 54. 48 N.T. 50. 49 N.T. 341. 5o N.T. 53. 5~ N.T. 66. 52 See, e.g., N.T. 348-49 (use of victim's account for check overdraft coverage). 6 facilitate payment of her bills.53 Many of these transactions occurred after December 31, 1997,54 and they continued until the power of attorney held by Defendant Eileen C. Bingaman was revoked on February 9, 2001.55 It appears that the scheme was discovered by the Cumberland County Area Agency on Aging as a result of the victim's accrual of a substantial debt at a residential facility in February, 2001.56 The victim was not aware of the devastating effect of Defendants' conduct upon her resources,57 nor was it consistent with her history of frugality, self-described as "stingy.''58 Neither Defendant testified at trial. Following the evidentiary phase of the trial, Defendants placed on the record their position regarding the statute of limitations: MS. HOLLINGER: .... With regard to the statute of limitations, it is our position that anything prior to December of 1997, any acts prior to that date, cannot sustain a conviction in this case. It is further our position that a statute of limitations argument is a jurisdictional issue, one, meaning that it is never waived, number one; number two, that it can be raised at any time .... .... We have conceded that the evidence prior to that date would be admissible [as tending to show a common plan, scheme or design], however, it is our position that the act could not sustain a conviction. The Commonwealth, I believe, has argued.., that because the conspiracy is considered to be an on-going offense, that the statute of limitations then is 5 years from the February 9, 2001, date of revocation of [Defendant Eileen C. Bingaman's] power of attorney. 5~ N.T. 31-44 (jewelry); 59 (victim's intent that her own bills be paid); 126-28 (furniture); 129-37 (recreational vehicle); 218, 340 (payoff of Defendants' mortgage); 348-49 (check overdraft coverage); 287-432 (in-depth analysis of transactions). 54 N.T. 287-432 (in-depth analysis of transactions). 55 N.T. 240. 56 N.T. 251-52. 57 N.T. 59. 58 N.T. 84. 7 It is our position, however, or the concern, however, that if, in fact, [Defendant Lon H. Bingaman] is acquit[t]ed of all charges, [Defendant Eileen C. Bingaman] is acquitted of the conspiracy charge, and all that is standing or left alone for the jury to consider, the jury could then, in fact, consider acts that were outside the five-year statute of limitations.59 In its charge to the jury on this subject, the court instructed the jury as follows: In this case the charges.., appear in what is called an information .... As I mentioned, an information is only an accusation. In this case, the information against each Defendant alleges that the crime[s] charged occurred between the 1st day of July 1997 and the 9th day of February 2001. Because that is the way the informations read, and although you may have heard of alleged wrongful acts of either or both Defendants occurring or alleged to have occurred before July 1, 1997, you may not find a Defendant guilty of a crime based on an act before July 1, 1997. Any crime of which a Defendant is convicted must be based on an act occurring after July 1, 1997. As I indicated, there was some evidence received or occurring before July 1, 1997, and that evidence was admissible, but it is admissible for a very limited purpose. It may be considered by you only to the extent that you find it to be reflective of the character of acts occurring after July 1, 1997, in the sense that it represented part of a common plan, scheme or design of a Defendant.® Although this aspect of the charge was not precisely as requested by defense counsel,6~ neither Defendant expressly objected to the charge as given in this regard.62 In its instructions to the jury, the court stated the following with respect to the general obligations of an attorney-in-fact: On the subject of the duties of an agent on a power of attorney I want to instruct you as follows: A power of attorney creates an agency relationship, with the party giving the power of attorney being called the principal and the party receiving the power of attorney being called the agent or attorney-in-fact. 59 N.T. 466-67. 60 N.T. 486-87. 61 See N.T. 468. 62 N.T. 493-98. 8 An agency relationship is a fiduciary one, and the agent is subject to a duty of loyalty to act only for the principal's benefit; thus, in all matters affecting the subject of the agency, the agent must act with the utmost good faith in furthering and advancing the principal's interests, including a duty to disclose to the principal all relevant information.63 Defendants objected to the inclusion of this, or any other, instruction on the general duties of an attorney-in-fact.64 Finally, with respect to the rights of joint owners of property, the court charged the jury as follows: On the subject of the rights of joint owners of property, ! want to instruct you as follows: As a general rule, any co-owner of a joint account lawfully obtained may withdraw funds from the account.65 Defendants objected to this instruction, with a request that the jury be instructed instead that "a joint owner or co-owner of personal property cannot be held guilty of theft by taking or appropriating to his own use the whole or any part of the joint property, so, if you find from the evidence in this case that Defendant Bingaman was a joint owner or co- owner on the bank accounts referred to in this case from which money was taken, such could not be theft and you must find the Defendant not guilty.''66 Following deliberations, the jury found Defendant Eileen C. Bingaman guilty as charged of theft by unlawful taking or disposition, theft by failure to make required disposition of funds received, receiving stolen property, and criminal conspiracy to commit each of those offenses, with each crime being a felony of the third degree due to the amount involved being in excess of $2,000.00.67 Defendant Lon H. Bingaman was found guilty of the same offenses, with the exception of the charge of theft by failure to make required distribution of funds received, as to which he was acquitted.68 63 N.T. 486. 64 N.T. 494. 65 N.T. 485-86. 66 N.T. 494-95. 67 Order of Court, September 19, 68 Order of Court, September 19, 2003 (No. 03-0318 Crim. T.). 2003 (No. 03-0322 Crim. T.). 9 Defendants were sentenced on December 2, 2003. Postsentence motions were denied on February 20, 2004. Notices of appeal were filed by Defendants on March 19, 2004.69 DISCUSSION Witness competency. With respect to the competency of witnesses in general in Pennsylvania, Rule 601(a) of the Pennsylvania Rules of Evidence provides that "[e]very person is competent to be a witness except as otherwise provided by statute or in these Rules." Stated otherwise, there is a general presumption of competency with respect to any prospective witness. Commonrvealth v. Delbridge, 2002 WL 32170269 (Pa. Super. Ct. 2002). It is provided further in Rule 601 as follows: A person is incompetent to testify if the Court finds that because of a mental condition or immaturity the person: (1) is, or was, at any relevant time, incapable of perceiving accurately; (2) is unable to express himself or herself so as to be understood either directly or through an interpreter; (3) has an impaired memory; or (4) does not sufficiently understand the duty to tell the truth. Pa. R.E. 601(b). "The application of [these criteria for disqualification] is a factual question to be resolved by the Court." Comment, Pa. R.E. 601(b). The issue of a person's competency to be a witness is vested within the sound discretion of the trial court. Commonrvealth v. Shearer, 2003 PA Super. 240, 828 A.2d 383,390 (2003). In the present case, based upon the evidence adduced at the competency hearing conducted by the court with respect to the victim, the court was more than satisfied as a factual matter that Ms. Trout was not subject to disqualification as a witness under the criteria of Pennsylvania Rule of Evidence 60 l(b), and so indicated in its findings of fact. 69 Pending disposition of the appeals, Defendants remain at liberty on bail. Orders of Court, December 2, 2003. 10 To the extent that she did not have total recall of every event occurring six years prior to trial, her mental capacity was hardly unique, and defense counsel were able through cross-examination to advance their positions as to reasonable doubt by exploiting these weaknesses in the Commonwealth's case. Statute of limitations. Under Section 5552 of the Judicial Code, the offenses of theft by unlawful taking or disposition, theft by failure to make required disposition of funds received, and receiving stolen property are subject to a five-year statute of limitations,7° and conspiracy to commit these offenses is subject to a similar limitations period.TM Under Section 5552(d) of the Judicial Code, it is further provided as follows: An offense is committed either when every element occurs, or, if a legislative purpose to prohibit a continuing course of conduct plainly appears, at the time when the course of conduct or the complicity of the defendant therein is terminated .... 72 Thus, it has been held that "[c]riminal conspiracy.., is a continuing offense. Its essence is an agreement that a criminal objective be accomplished. The of Jbnse does not terminate until the conspiracy ends, at which point [the limitations period] starts to run." Commonwealth v. McSloy, 2000 PA Super. 130, ¶10, 751 A.2d 666, 669 (2000) (emphasis added). In addition, Section 5552(c)(1) of the Judicial Code provides as follows: If the [limitations] period prescribed.., has expired, a prosecution may nevertheless be commenced for... [a]ny offense a material element of which is either fraud or a breach of fiduciary obligation within one year after discovery of the offense by an aggrieved party or by a person who has a legal duty to represent an aggrieved party and who is himself not a party to the offense, but in no case shall this paragraph extend the period of limitation otherwise applicable by more than three years.73 70 Act of July 9, 1976, P.L. 586, 82, as amended, 42 Pa. C.S. §5552(b)(1). 7~/d; 42 Pa. C.S. §5552(b)(3); Commonwealth v. McSloy, 2000 PA Super. 130, 751 A.2d 666 (2000). 72 Act of July 9, 1976, P.L. 586, 82, as amended, 42 Pa. C.S. §5552(d). 73 Act of July 9, 1976, P.L. 586, 82, as amended, 42 Pa. C.S. §5552(c)(1). 11 Finally, a statute of limitations defense, which is neither jurisdictional nor unwaivable,TM is to be raised in an omnibus pretrial motion.75 The failure to do so will normally be deemed a waiver of the issue.76 In the present case, the informations filed against Defendants clearly indicated the time period, running from July 1, 1997, until February 9, 2001, during which, the Commonwealth maintained, Defendants' conspiracies and other offenses continued. Under the circumstances as recounted above, where (a) the Court limited the jury's consideration of the offenses to the time period noticed in the informations, (b) evidence of Defendants' conduct beyond any statute of limitations was concededly admissible to show a common plan, scheme or design, (c) the charge of the court as it related to the statute of limitations was not expressly objected to at the conclusion of the instructions when objections were solicited, (d) the issue of the statute of limitations was not timely raised by Defendants, and (e) on the merits the period noticed in the informations was within the scope of the extended periods of limitation provided for in Sections 5552(d) and 5552(c)(1) of the Judicial Code, it is believed that Defendants' request for relief on the basis of the statute of limitations is not tenable. Power of attorney. "A power of attorney is an instrument in writing whereby one person, as principal, appoints another as his agent and confers authority to perform certain specified acts or kinds of acts on behalf of the principal." Kutnyak v. Department of Corrections, 748 A.2d 1275, 1280 n. ll (Pa. Commw. 2000). Such an agent is sometimes referred to as an attorney-in-fact.77 With respect to the general duties of an agent, the Pennsylvania Supreme Court has stated as follows: "An agency relationship is a fiduciary one, and the agent is subject to a duty of loyalty to act only for the principal's benefit." Sutliff v. 74 See Commonwealth ex rel. Peterson v. Ashe, 154 Pa. Super. 397, 36 A.2d 249 (1944). 75 Commonwealth v. Groff, 378 Pa. Super. 353, 367, 548 A.2d 1237, 1244 (1988). 76 Id. 77 See, e.g., Estat~ of Reifsneider, 531 Pa. 19, 610 A.2d 958 (1992). 12 SutlifJ, 515 Pa. 393, 404, 528 A.2d 1318, 1323 (1987), citing Restatement (Second) of Agency § 387 (1958). Thus, in all matters affecting the subject of the agency, the agent must act with the utmost good faith in furthering and advancing the principal's interests, including a duty to disclose to the principal all relevant information. See Sylvester v. Beck, 406 Pa. 607, 610-11, 178 A.2d 755, 757 (1962). Basile v. H & R Block, Inc., 563 Pa. 359, 368, 761 A.2d 1115, 1120 (2000). In this case, involving issues as to the lawfulness of Defendants' use of the victim's money, and the propriety of the disposition of funds received, and involving conspiracy counts as well as a theory of accomplice liability, and where the evidence established that one defendant had received from the victim the benefit of a power of attorney with respect to the use and disposition of her assets, it would not, in the court's view, have been appropriate to leave the jury with no information whatsoever as to the fiduciary nature of the agency relationship. The charge on this subject was a brief, verbatim recital of caselaw. Joint orvnership. Not every joint account is intended to represent a gift of money deposited by one joint owner to the other. Estate of Gladorvski, 483 Pa. 258, 396 A.2d 631 (1979); see Act of July 9, 1976, P.L. 547, §1, as amended, 20 Pa. C.S. §6303(a) (2004 Supp.). Some accounts, notwithstanding their form, are convenience accounts. See generally Glessner v. Security-Peoples Trust Co., 166 Pa. Super. 566, 72 A.2d 817 (1950). A party to a convenience account who appropriates money deposited by the co- owner contrary to the intended purpose of the account has committed a theft. Bailey v. Texas, 2003 WL 22860220 (Tex. Ct. App. 2003) (withdrawal by co-owner of money from convenience account established by 99-year-old woman). In the present case, the import of the instruction regarding joint accounts requested by Defendants was to ignore the subtleties discussed above in favor of a charge that would have, effectively, represented a directed verdict in Defendants' favor as the prosecution related to misuse of joint accounts. The charge as given was more faithful to 13 the principles recited above and was, if anything, more generous to Defendants than the law required. Weight of the evidence. In a determination of whether a new trial should be granted based on a challenge to the weight of the evidence, the proper test is whether the verdict is so contrary to the evidence presented at trial as to "shock [the court's] sense of justice." McElrath v. Commonwealth, 405 Pa. Super. 431, 443, 592 A.2d 740, 745 (1991). While this issue requires a review of all evidence presented at trial, credibility determinations are within the province of the trier of fact. Id. at 442-43,592 A.2d at 745. In a jury trial, the jury is free to believe all, part or none of the evidence presented. Commonwealth v. Hanible, 575 Pa. 255, 836 A.2d 36 (2003). In the present case, where Defendants systematically depleted the savings of an elderly woman to the extent of $618,000.00 for their own benefit over a four-year period and left her penniless, the guilty verdicts of the jury did not shock the court's sense of justice. For all of the foregoing reasons, it is believed that the judgments of sentence appealed from were properly entered. BY THE COURT, Daniel J. Sodus, Esq. Senior Assistant District Attorney Linda S. Hollinger, Esq. Assistant Public Defender for Defendant Eileen C. Bingaman Jason P. Kutulakis, Esq. Court-appointed Attorney for Defendant Lon H. Bingaman J. Wesley Oler, Jr., J. 14