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HomeMy WebLinkAboutCP-21-CR-0183-2004 COMMONWEALTH IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA vs. CP-21-CR-0183-2004 CHARGE: (1) THEFT BY DECEPTION (2) FALSE REPORTS ANDREW C. HOOKE, II OTN: H833364-0 AFFIANT: AGENT MICHAEL DEFEBO IN RE: OPINION PURSUANT TO RULE 1925 On January 25, 2005, the defendant was sentenced after having been convicted of theft by deception and false reports to law enforcement authorities. Thereafter, he filed a motion for judgment of acquittal which was denied. He has now appealed. The question framed on appeal is whether the evidence, taken in a light most favorable to the Commonwealth, supports the conviction for theft by deception. A brief filed by the Commonwealth in opposition to the motion of judgment of acquittal accurately sets forth the factual and procedural history of this matter as follows. The defendant applied for a loan at CitiFinancial in Carlisle, and financed a total of $4,636.90. On May 12, 2005, Hooke appeared at the offices ofCitiFinancial and picked up three checks totaling $3,500.14. One of the checks was payable to the order of Andrew C. Hooke and Capital One Bank for $246.00, a second check was payable to the order of Andrew C. Hooke and AAFES in the amount of$197.00, and a third check was made payable to the order of Andrew C. Hooke in the amount of$3,057.14. The Commonwealth's evidence showed that after receiving the checks on May 12, 2003, at 10: 13 a.m. (trial transcript, pp. 42-43), Hooke visited his bank at 10:50 a.m. (transcript, p. 62) and cashed the $3,057.14 check, depositing $2,000.00 into his checking account and retaining $1,057.14 in cash. At 11:29 a.m. (transcript, p. 51), the defendant used the $197.00 check to make a payment on his account at AAFES at the Carlisle CP-21-CR-0183-2004 Barracks. The check for $246.00 was sent to Capital One Bank as a payment on the defendant's credit card balance. Hooke was required to show identification and sign documents at CitiFinancial when he picked up the checks, and his image appears on a video tape obtained from Commerce Bank which shows him making the deposit into his checking account. However, Hooke has denied that he applied for the loan in question, and claims that the person appearing on the video tape is not him. After collecting the loan proceeds from CitiFinancial on May 12, 2003, Hooke failed to make the first required payment on the loan on July 13, 2003, and personally appeared at the offices ofCitiFinancial on July 15,2003, claiming that he had not applied for the loan (transcript, pp. 33-38). On August 5, 2003, Hooke made a report to the Office of Attorney General that he had been the victim of identity theft in regard to the loan from CitiFinancial, a claim that was repeated on a number of occasions (transcript, pp. 5-19). The Information charges Hooke with having committed theft by deception during a time period from May 2,2003 through August 5, 2003, which encompasses the time from when the defendant first applied for the loan, to the time that a false report was made to the Office of Attorney General that the defendant had not applied for the loan and had not received the proceeds. There was no testimony that the lender wrote off this loan; however, the representative ofCitiFinancial did testify that the defendant did receive the checks (transcript, pp. 27-30), and that the defendant failed to make the first payment in July 2003 and then claimed that he had not applied for the loan and had not received the proceeds. The witness, further, stated that the defendant never made any payments on this loan (transcript, p. 33). Theft by deception is made out where a person "intentionally obtains or withholds property of another by deception." 18 P.S. 3922(a). A deception, in turn, occurs where one 2 CP-21-CR-0183-2004 "creates or reinforces a false impression" but "deception as to a person's intention to perform a promise shall not be inferred from the fact alone that he did not perform the promise." Id. at (a)(I). Hooke contends that the evidence presented by the Commonwealth at trial was insufficient to maintain the charge of theft by deception in that there is no evidence that the defendant had an intent to deceive CitiFinancial in May of 2003 when he applied for the loan and also because the evidence fails to show that he received any benefit from the loan. In theft by deception cases, the focus is, generally, on the intention of the defendant at the time property was obtained. See Com. v. Wilks, 676 A.2d 266 (Pa. Super. 1996). In Wilks, the conviction was overturned on the basis that the Commonwealth failed to prove that the defendant had not intended to pay for motor oil at the time he took possession of the oil. The court observed that the required intent could not be inferred simply from the fact that the defendant subsequently refused to pay for the oil. This was a case where the defendant tendered a check for the oil, there were adequate funds in his account to cover his check, and the failure to pay resulted from a stop payment order issued with regard to the check as a result of a disagreement over the quality of the oil. The matter sub judice involves a situation where there is far more than a simple failure to make payment. Here, after receiving the loan proceeds, the defendant affirmatively sought to create the impression that it was not he who had applied for the loan. We underscore, again, that the theft by deception statute applies not only to cases where one "obtains" property but also to situations where one "withholds" property of another. By borrowing money and then, subsequently, claiming that one has been the victim of identity theft is to obtain money and then, rather than repay it, withhold it by deception. Weare satisfied that, in cases involving a repayment of a loan, a theft by deception can occur even though the intent to 3 CP-21-CR-0183-2004 avoid repayment by deception is formed after the loan proceeds are obtained. 1 For this reason, we believe that the conviction was proper in this case. Kevin A. Hess, 1. George Zaiser, Esquire Senior Deputy Attorney General Jessica Rhoades, Esquire Assistant Public Defender District Attorney's Office Probation :rlm 1 The fact that the defendant was not ultimately successful in his scheme suggests that he should have been charged with an attempt rather than with the object crime itself. Neither party, however, has advanced this argunlent. 4