HomeMy WebLinkAboutCP-21-CR-0002048-2010COMMONWEALTH : IN THE COURT OF COMMON PLEAS OF
CUMBERLAND COUNTY, PENNSYLVANIA
CHARGES: (1) THEFT BY DECEPTION
(2) FORGERY—UNAUTHORIZED ACT IN
V. WRITING
(3) IDENTITY THEFT
(4) UNLAWFUL USE OF COMPUTER
(5) THEFT BY UNLAWFUL TAKING
ELLEN J. JANESKO
OTN: K775658-2 : CP -21 -CR -2048-2010
IN RE: DEFENDANT'S OMNIBUS PRETRIAL MOTION
OPINION AND ORDER OF COURT
OLER, J., March 28, 2011.
In this criminal case in which Defendant has been accused of misappropriating
assets of her husband after he suffered a stroke, Defendant has filed an omnibus pretrial
motion seeking, inter alia, (1) a quashal of the information as it relates to charges of
identity theft and unlawful use of a computer on statute -of -limitations grounds, (2) a
dismissal of the charges of theft by deception, theft by unlawful taking and forgery, on
lack -of -a -prima -facie -case grounds, and (3) a suppression of any evidence of unlawful
acts occurring prior to the running of the statute of limitations pertaining to them. i
A hearing was held on Defendant's omnibus pretrial motion on January 12, 2011.
For the reasons stated in this opinion, the motion will be granted in part and denied in
part.
' See Defendant's Omnibus Pretrial Motion Pursuant to Pennsylvania Rule of Criminal Procedure Rule
578, filed October 14, 2010 (hereinafter "Def's Omnibus Pretrial Mot., filed Oct. 14, 2010"); Brief in
Support of Defendant's Omnibus Pre -Trial Motions, submitted February 11, 2011. Other issues raised in
Defendant's Omnibus Pretrial Motion have been previously disposed of See Order of Court, In re:
Omnibus Pretrial Motions, January 12, 2011.
STATEMENT OF FACTS
For purposes of a disposition of Defendant's motion, the Commonwealth and
Defendant have stipulated to the following set of facts:
... On May 26, 2005, the victim in this case, one Michael James Janesko, arrived
at PSP—that is[, the] Pennsylvania State Police Carlisle [Barracks]—with a report that he
was a victim of forgery and theft at the hands of his wife, Ellen Susan Janesko.
Michael Janesko and [Defendant] Ellen Susan Reifsnyder, known as Jade
Reifsnyder to Michael, were married on December 14, 1992. Michael Janesko related
that the relationship was initially very happy and that Ellen, known as Jade to him, took
over the finances.
Michael related that on February 21st, 2004, he had a stroke and was
hospitalized. Two days later, on February 23rd, 2004, the Defendant came to the hospital
and had the victim sign a Power of Attorney. He related that he was not[—]he, ... being
Michael Janesko [—]related that he was not in the right frame of mind to have given a
Power of Attorney and did not fully understand the implications of a Power of Attorney.
In fact, during his interview with police, he stated that he barely had the strength to
physically sign the document and wasn't even sure what he was signing. Furthermore,
this POA was not notarized.
Seven months later, on September 29th, 2004, Defendant took [the] victim to the
offices of Rominger and Bayley Law Firm to sign what the Defendant told the victim was
a will. Unbeknownst to him, that being Michael Janesko, it was another Power of
Attorney. No attorney was present during the signing, and the victim signed where he
was instructed to do so by the secretarial staff. No questions were asked by the victim
nor did he think to ask any questions. He did not expressly authorize this POA.
After the initial interview with the victim on May 26, 2005, [a] financial
investigation was initiated utilizing the services of forensic accountant Susan Stott, CPA,
from Stott and Stott Financial Services. The investigation resulted in the following
information.
Accounts that had been victimized by the Defendant include Pennsylvania
Central Federal Credit Union, account number 90571-016, belonging to the victim.
Fidelity Investments PP & L Savings account 90033. PP & L Employee Stock Option
Plan, account number 90034, and Fidelity Rollover IRA account number 219-209430.
In relation to the Central Federal Credit Union, account number 90571, through
the use of Grand Jury subpoenas, interviews with the victim, Michael Janesko, and the
analysis of Susan Stott, the following was learned:
Federal Credit Union, account number 90571-016, was created on April 12th,
2002, with Michael Janesko as the sole signatory on this signature card. Michael utilized
this account as a savings account and made no withdraws from it. A portion of his
paycheck was electronically deposited into the account every month.
2 In so stipulating Defendant's counsel reserved the right to contest the Commonwealth's allegations at
trial. N.T. 12, Hearing on Defendant's Omnibus Pretrial Motion, January 12, 2011 (hereinafter N.T. �.
2
On May 3rd, 2003, it appears that Michael J. Janesko signed the signature card.
The date after Michael's name is difficult to read. Written in red across the middle of the
card is cleared May 4th, 2003. Noted on the side of the signature card it is dated May,
2003, to add joint, and it is initialed by MIF. Also on May 5t h, 2003, on the top of the
signature card are the letters OFAC with the name of Joni.
The date on the signature card that the Defendant signed as E. Jade Janesko is
May 7th, 2003, was added to the account as a second signatory. The signatory card
adding E. Jade Janesko has the signature of Michael Janesko officially authorizing the
act. However, Michael Janesko relates he did not sign the card nor authorize the addition
of his wife.
Beginning May 7th, 2003, and continuing through December 2004, a number of
cash withdraws and electronic transfers into bank accounts registered to Jade Janesko
were made from this account totaling $20,800.13. The electronic transfers were made
utilizing the internet. Michael Janesko was unaware of this activity and did not authorize
it or benefit from it.
In relation to the Fidelity Investments PP & L Savings Plan, account number
90033, through the use of Grand Jury subpoenas, interviews with the victim, Michael
Janesko, and the analysis of Susan Stott the following was learned. The account was
created by the victim prior to 1992 as part of his employment at PP & L as a retirement
account....
According to Susan Stott and Michael, one does not normally withdraw or cash
in this type of account except to retire, emergencies or major purchases.
Prior to March 16th, 2004, Michael had been making steady automatic
contributions into this account as part of his employment. He made one withdrawal on
February 10 th, 1994, as part of a settlement on property he purchased. He made no other
withdraws and no other type of withdrawal activities are noted on the records prior to
March 16th, 2004.
From March 16th, 2004, and continuing through April 5th, 2005, a number of
requests were made to the company to cash out large amounts of the investment savings
plans. Jade Janesko made the request by phone, internet transactions, and as a Power of
Attorney. Large cash withdraw[al] and electronic transfers from this account into
accounts registered to Jade Janesko were made in the amount of $148,391. That is
$148,391.98.
The electronic transfers were accomplished via the internet. This account, when
it was originally created was not initially set up to do transfers via the internet. However,
after March 16th, 2004, it was modified to do so.
The victim maintains that he had no knowledge of these withdraw[al]s from his
retirement account and did not give the Defendant permission to make the withdraw[al]s.
On at least one occasion the Defendant used the Power of Attorney to make a
withdraw[al] from this account. On April 16th, 2003, Fidelity made a note for this
account to be aware of a suspicious caller, possibly a female voice.
In relation to the Fidelity Ira Rollover, account number 219-209430, through the
use of Grand Jury subpoenas, interviews with the victim, Michael Janesko, and the
analysis of Susan Stott, the following was learned.
3
The source of the funds of this account was a rollover from the Fidelity
Investment PP & L Savings Plan. The amount of the rollover was $9,521.77. During
April of 2005, the Defendant withdrew $7,900 of the $9,521.77. The account was set up
and withdraw[al]s were made through the internet. The victim maintains that he had no
knowledge of the account's existence or the withdrawals that were made.
PP & L Employee—in relation to PP & L Employee Stock Option Plan, account
number 90034, through the use of Grand Jury subpoenas, interviews with the victim,
Michael Janesko, and the analysis of Susan Stott, the following was learned.
From March 2004 through April of 2005, the Defendant either sold stocks or
cashed dividend checks belonging to the victim. Gross stock sales and dividend income
totals were $9,324.48. The victim was the sole owner of the account and maintains that
he had no knowledge of these transactions. The monies taken from these accounts total
approximately $186,415.99....
... The last activities between March 3rd, 2005, and April 30th, 2005, are the
following.
In the PP & L Employee Stock Option Plan, on April 1st, 2005, a dividend check
was issued in the amount of $202.01 and deposited into an account of E. J. Janesko.
$200 cash [was] withdrawn from that dividend check.
In relation to Fidelity Investment PP & L Savings Plan, on April 5, 2005, Fidelity
IRA Rollover was created by the Defendnat, and on April 5th, 2005, the Defendant rolled
over $9,521.77 from the PP & L Savings Plan into the Fidelity IRA Rollover, and on
April 7, 2005, $5,000 was withdrawn by the Defendant from the IRA rollover, and on
April 11th, 2005, an additional $2,900 was withdrawn from the Fidelity IRA rollover.
[A]dditionally, in relation to Defendant's claims in the Omnibus Pretrial Motion,
the last act of Identity Theft occurred on April 16th, 2005, regarding the Fidelity IRA
Rollover account where a recording was made of a female caller reporting to be Michael
Janesko authorizing the transaction.
In regards to the Unlawful Use of a Computer charge, the last act occurred on
April 11th, 2005, when the $2,900 was withdrawn through the—authorized through the
internet from the Fidelity IRA Rollover account.
Lastly, ... Susan Stott would testify that through May 1st, 2003, and April 30th,
2005, ... as she tracked the various withdrawals from the accounts, that numerous
accounts were opened and closed in the name of E. J. Janesko during this time period,
and that many of the transactions, the withdraws, can be traced into these accounts....
[Earlier herein, it was] stated that the monies taken from these accounts total[ed]
approximately $186,415.99. Since the Affidavit of Probable Cause was created, that
number was adjusted to ... $176, 040.18, and that is what Susan Stott testified to at the
preliminary hearing held in this matter, and that is what the Commonwealth is claiming
was stolen.'
' N.T. 5-12.
0
In addition, Defendant has represented that she "resided in Kansas prior to" the
January 12, 2011, hearing on her omnibus pretrial motion.4 She also acknowledged that
Defendant did not appear for some court proceedings in her divorce.
At the time of those hearings, Defendant was residing out of the state
and had a job driving tractor trailer. Defendant was hard to be reached
for periods of time due to her job which caused her to travel a lot.
Defendant maintains that she appeared or otherwise made
arrangements for all required court appearances of which she was
5
aware.
Regrettably, this is the extent of the record as to Defendant's whereabouts during the time
between the occurrences of the alleged offenses and the filing of the criminal complaint.
The criminal complaint was filed in this case on March 3, 2010.6 Defendant's
omnibus pretrial motion was filed on October 14, 2010.7 It included the following: (a) a
Motion To Quash Information on Charges of Identity Theft and Unlawful Use of
Computer As Being Past the Statute of Limitations, asserting that "the criminal activity of
which the Defendant is accused occurred between May 1, 2003 and April 30, 2005,"' and
that a two-year statute of limitations applied to the offenses of identity theft and unlawful
use of a computer;9 (b) a Motion To Quash Information and Dismiss Charges of Theft by
Deception, Theft by Unlawful Taking and Forgery, asserting that the property alleged to
have been wrongfully taken by Defendant was marital property in which Defendant
"could have" had an ownership interest; 10 and (c) a Motion To Suppress Evidence of
Alleged Criminal Activity Prior to March 3, 2005, asserting that a two-year statute of
limitations was applicable to the offenses of identity theft and unlawful use of a
4 Def's Omnibus Pretrial Mot., ¶40, filed Oct.
14, 2010.
5 Def's Omnibus Pretrial Mot., ¶41, filed Oct.
14, 2010.
6 Police Criminal Complaint, filed March 3, 2010.
Def's Omnibus Pretrial Mot., filed October 14,
2010.
s Def's Omnibus Pretrial Mot., ¶10, filed Oct.
14, 2010.
9 Def's Omnibus Pretrial Mot., ¶11, filed Oct.
14, 2010.
10 Def's Omnibus Pretrial Mot., ¶22, filed Oct.
14, 2010.
5
computer," a five-year statute of limitations was applicable to the offenses of theft by
deception, theft by unlawful taking and forgery, 12 and that accordingly no evidence of
criminal conduct dating prior to March 3, 2008, should be admitted in support of the first
two offenses and no evidence of criminal conduct dating prior to March 3, 2005, should
be admitted in support of the second three offenses. 13
DISCUSSION
Statement of Law
Statutes of limitations. The offense of identity theft 14 is subject to a two-year
statute of limitations. 15 For purposes of this crime, the legislature has provided that
"[e]ach time a person possesses or uses identifying information in violation of [the law]
constitutes a separate offense ... "iM
The offenses of unlawful use of a computer, 17 forgery, l s theft by deception,19 and
theft by unlawful taking or disposition 20 are subject to a five-year statute of limitations. 21
Under Section 5554(1) of the Judicial Code, it is provided as follows:
" Def's Omnibus Pretrial Mot., ¶26, filed Oct. 14, 2010.
12 Def's Omnibus Pretrial Mot., ¶25, filed Oct. 14, 2010.
" See Def's Omnibus Pretrial Mot., ¶¶24-26, filed Oct. 14, 2010. A Motion for Habeas Corpus
Proceeding included in Defendant's omnibus pretrial motion, "request[ing] that a habeas corpus hearing
be scheduled in which the Commonwealth is directed to produce the evidence that they have that
Defendant Ellen Janesko committed the crimes with which she is charged" was granted to the extent that
the Commonwealth by stipulation presented its evidence of Defendant's guilt by way of a stipulation at
the hearing on Defendant's omnibus pretrial motion. See N.T. 14. Def's Omnibus Pretrial Mot. ¶¶27-28,
filed Oct. 14, 2010.
14 See 18 Pa. C.S. §4120(a).
is 42 Pa. C.S. §5552(a).
16 18 Pa. C.S. §4120(b).
17 See 18 Pa. C.S. §761l(a)(1) (formerly 18 Pa. C.S. §3933).
" See 18 Pa. C.S. §4101(a)(2).
19 See 18 Pa. C.S. §3922(a)(1).
20 See 18 Pa. C.S. §3921(a).
21 42 Pa. C.S. §5552((b)(1).
6
[Subject to an exception not here relevant], the period of limitation does not run
during any time when ... the accused is continuously absent from this Commonwealth or
has no reasonably ascertainable place of abode or work within this Commonwealth ....zz
The burden is on the Commonwealth to establish the applicability of this provision to a
defendant's case. See Commonwealth v. Turner, 176 Pa. Super. 32, 107 A.2d 136 (1954);
Commonwealth v. Hillman, 59 Pa. D. & C.2d 123 (Mercer Co.).
Under Section 5552(d) of the Judicial Code, it is 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. Time starts to
run on the day after the offense is committed.zs
For purposes of the statute of limitations, the crime of conspiracy is considered a
"continuing" offense. See Commonwealth v. Johnson, 419 Pa. Super. 625, 640, 615 A.2d
1322, 1329 (1992). However, no appellate authority has been found for the proposition
that the crimes charged against Defendant in this case represent offenses as to which "a
legislative purpose to prohibit a continuing course of conduct plainly appears," nor is the
court able to glean such a purpose from the applicable provisions.
Interest of Defendant in property allegedly subject of crime. With respect to theft
offenses, the fact that the defendant may have had an interest in the property allegedly
stolen does not relieve him or her of criminal liability for a deprivation of another
interest -holder's rights in the property. See Commonwealth v. Mescall, 405 Pa. Super.
326, 592 A.2d 687, 691 (1991) (rejecting defense based on argument that subject of
alleged theft was marital property); 18 Pa. C.S. §3901 (definition of "property of another"
for purposes of theft and related offenses). The offense of forgery is similarly not
dependent upon whether the defendant may have a legal interest in the proceeds of the
proscribed conduct.
Evidence of Criminal Conduct beyond Statute of Limitations. Where an offense
charged is reflective of a common scheme, plan or design, the "admissibility of the
evidence is not affected by the fact that the prior incidents occurred outside the statute of
22 42 Pa. C.S. §5554(1).
23 42 Pa. C.S. §5552(d).
7
limitations." Commonwealth v. Wattley, 205 PA Super 272, ¶10, 880 A.2d 682, 686. In
this regard, it may be noted that "[e]vidence of other crimes, wrongs, or acts may be
admitted for [purposes other than to prove the character of a defendant], such as proof of
motive, opportunity, intent, preparation, plan, knowledge, identity or absence of mistake
or accident." Pa. R.E. 402(b)(2).
Application of Law to Facts
With respect to Defendant's position that certain charges in this case were filed
beyond the applicable statutes of limitations, the court is in agreement with her legal
positions (a) that the crimes charged are not ones where a legislative purpose to prohibit a
continuing course of conduct, which would extend the limitation periods, has been
plainly indicated and (b) that the evidentiary record is insufficient to support a tolling of
the limitation periods on the basis of Defendant's continuous absence from the state.
With respect to Defendant's position that her purported marital interest in the
subject matter of the alleged theft and forgery offenses precludes the possibility of
criminal liability for her alleged conduct, the Court is in agreement with the
Commonwealth's position that it does not. Finally, with respect to Defendant's position
that evidence of criminal activity beyond the statute of limitations is inadmissible, the
Court is in agreement with the Commonwealth's position that it is not.
Based upon the foregoing, the following order will be entered:
ORDER OF COURT
AND NOW, this 28th day of March, 2011, upon consideration of Defendant's
Omnibus Pretrial Motion Pursuant to Pennsylvania Rule of Criminal Procedure Rule 578,
following a hearing held on January 12, 2011, and for the reasons stated in the
accompanying opinion, it is ordered and directed as follows:
1. The motion is granted to the extent that the Commonwealth is
precluded from pursuing charges of identity theft and unlawful use of a
computer for discrete incidents representing completed offenses beyond the
3
applicable two- and five-year limitations periods, as indicated in the
opinion;
2. The motion is denied to the extent that it seeks a dismissal on
other grounds of the charges of theft by deception, theft by unlawful taking,
and forgery; and
3. The motion is denied to the extent that it seeks a suppression of
evidence.
Matthew P. Smith, Esq.
Chief Deputy District Attorney
Sheri D. Coover, Esq.
44 South Hanover Street
Carlisle, PA 17013
Attorney for Defendant
0
BY THE COURT,
s/ J. Wesley Oler, Jr.
J. Wesley Oler, Jr., J.
COMMONWEALTH : IN THE COURT OF COMMON PLEAS OF
CUMBERLAND COUNTY, PENNSYLVANIA
CHARGES: (1) THEFT BY DECEPTION
(2) FORGERY—UNAUTHORIZED ACT IN
V. WRITING
(3) IDENTITY THEFT
(4) UNLAWFUL USE OF COMPUTER
(5) THEFT BY UNLAWFUL TAKING
ELLEN J. JANESKO
OTN: K775658-2 : CP -21 -CR -2048-2010
IN RE: DEFENDANT'S OMNIBUS PRETRIAL MOTION
ORDER OF COURT
AND NOW, this 281h day of March, 2011, upon consideration of Defendant's
Omnibus Pretrial Motion Pursuant to Pennsylvania Rule of Criminal Procedure Rule 578,
following a hearing held on January 12, 2011, and for the reasons stated in the
accompanying opinion, it is ordered and directed as follows:
1. The motion is granted to the extent that the Commonwealth is
precluded from pursuing charges of identity theft and unlawful use of a
computer for discrete incidents representing completed offenses beyond the
applicable two- and five-year limitations periods, as indicated in the
opinion;
2. The motion is denied to the extent that it seeks a dismissal on
other grounds of the charges of theft by deception, theft by unlawful taking,
and forgery; and
3. The motion is denied to the extent that it seeks a suppression of
evidence.
BY THE COURT,
J. Wesley Oler, Jr., J.
Matthew P. Smith, Esq.
Chief Deputy District Attorney
Sheri D. Coover, Esq.
44 South Hanover Street
Carlisle, PA 17013
Attorney for Defendant