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HomeMy WebLinkAboutCP-21-CR-0002048-2010 COMMONWEALTH : IN THE COURT OF COMMON PLEAS OF : CUMBERLAND COUNTY, PENNSYLVANIA : V. : : ELLEN J. JANESKO : CP-21-CR-2048-2010 IN RE: OPINION PURSUANT TO PENNSYLVANIA RULE OF APPELLATE PROCEDURE 1925 Masland, J., November 14, 2011:-- Defendant, Ellen J. Janesko, appeals her jury-trial convictions for theft by deception, forgery, and theft by unlawful taking. She complains of the following errors on appeal: 1. The evidence presented at trial was not sufficient to sustain convictions for Theft by Deception, Forgery and Theft by Unlawful Taking. During the course of Defendant’s marriage to the [sic] Michael Janesko, she would routinely pay bills from their accounts. When Defendant had her husband sign the Power of Attorney paperwork, he knew what the document was and the effect of his signature on the document. 2. The pre-trial court erred in denying, in part, Defendant’s Omnibus Pre-trial Motion. a. The pre-trial court should have precluded the Commonwealth from presenting evidence at trial of the offenses which fell outside of the applicable Statute of Limitations time period. b. The pre-trial court should have granted Defendant’s Motion to Quash/Dismiss the charges of Theft by Deception, Forgery and Theft by Unlawful Taking because Defendant had a marital interest in the property and the proper forum for such matters was a civil divorce proceeding and not criminal court. Concise Statement of the Errors Complained of on Appeal, filed September 22, 2011. CP-21-CR-2048-2010 I. Background The instant matter arises from Defendant’s systematic plundering of her husband’s assets following his incapacitation due to a stroke. She accomplished this by fraudulently obtaining his signature on a document purporting to give her power of attorney a mere two days following the stroke. Months later, she would again fraudulently obtain the victim’s signature on power of attorney documents by representing to the victim that he was signing a will. Armed with these documents and a brazen willingness to deceive, Defendant set out to liquidate the victim’s assets. Her tactics included forging the victim’s signature permitting her to access the victim’s savings account and cashing out large portions of his retirement account by attempting to impersonate him over the telephone. At trial, Defendant testified on her own behalf and denied all allegations of deceit and claimed the victim consented to all the questionable transactions. Ultimately, the jury found her explanations not credible and found her guilty of all charges. This court then sentenced Defendant to an aggregate prison term of 2 years, 8 months to 12 years, and to pay restitution to the victim in the amount of $197,228.44. II. Discussion At the outset, the court notes Defendant’s issues 2(a) and (b) relating to pretrial matters have already been addressed by our esteemed colleague the Honorable J. Wesley Oler, Jr. in an order and opinion dated March 28, 2011. The court finds Judge Oler’s opinion to be comprehensive and well-reasoned and therefore incorporates it herein. Defendant’s remaining issue relates to the -2- CP-21-CR-2048-2010 sufficiency of the evidence supporting her convictions for theft by deception, theft by unlawful taking, and forgery. A. Theft by Deception To convict a defendant for theft by deception, the Commonwealth must prove she “intentionally obtain[ed] or with[held] property of another by deception.” 18 Pa.C.S. § 3922(a). Deception is defined as intentionally creating or reinforcing a false impression. 18 Pa.C.S. § 3922(a)(1). The Commonwealth must also show that the victim relied on the false impression created or reinforced by the defendant. Commonwealth v. Sanchez, 848 A.2d 977, 983 (Pa. Super. 2004). As stated in her concise statement of matters complained of on appeal and in her testimony at trial, Defendant denies she ever engaged in any deception of the victim and that he was fully aware of the consequences of his signature on the power of attorney documents. This court disagrees. In a jury trial, the jury acts as fact finder and as such makes all credibility determinations and “may believe all, part, or none of a witness's testimony.” Commonwealth v. Jones, 886 A.2d 689, 704 (Pa. Super. 2005). Here, the jury clearly believed none of Defendant’s self-serving testimony. By finding Defendant guilty on all counts the jury found that she deceived the victim into signing power of attorney documents on two occasions, the first just days after his stroke when he was unable to comprehend the import of his signature, and the second, some months later when she deceived him into thinking that he was signing a will. The victim testified credibly regarding his reliance on his wife’s -3- CP-21-CR-2048-2010 representations regarding these documents. The combination of Defendant’s deception and the victim’s ill-fated reliance enabled Defendant to steal nearly $200,000. Accordingly, the Superior Court should not disturb the jury’s credibility determinations and should affirm Defendant’s conviction for theft by deception. B. Forgery Defendant challenges the sufficiency of the evidence for her forgery conviction. The Crimes Code states: A person is guilty of forgery if, with intent to defraud or injure anyone, or with knowledge that he is facilitating a fraud or injury to be perpetrated by anyone, the actor: (1) alters any writing of another without his authority; (2) makes, completes, executes, authenticates, issues or transfers any writing so that it purports to be the act of another who did not authorize that act, or to have been executed at a time or place or in a numbered sequence other than was in fact the case, or to be a copy of an original when no such original existed; or (3) utters any writing which he knows to be forged in a manner specified in paragraphs (1) or (2) of this subsection. 18 Pa. C.S. §4101 (emphasis added). The Commonwealth argued that Defendant fraudulently executed signature cards in the victim’s name providing her access to his savings account and then proceeded to make substantial unauthorized withdrawals for her own benefit. The victim also stated that he did not execute the disputed signature cards. For her part, Defendant again relied on her own testimony denying the -4- CP-21-CR-2048-2010 allegations that she forged the victim’s signature. As before, the jury rejected Defendant’s testimony as not credible and returned a verdict of guilty for the forgery count. Such a credibility determination is uniquely in the purview of the jury sitting as fact finder and should not be disturbed on appeal. C. Theft by Unlawful Taking Finally, Defendant challenges the sufficiency of the evidence supporting her conviction for theft by unlawful taking. “A person is guilty of theft if [s]he unlawfully transfers, or exercises unlawful control over, immovable property of another or any interest therein with intent to benefit [her]self or another not entitled thereto.” 18 Pa.C.S. §3921(b). At trial, there was ample evidence that Defendant unlawfully transferred tens of thousands of dollars of the victim’s money to her control. Nonetheless, Defendant argues that she was entitled to do so on the basis of prior financial practices wherein she alleges “she would routinely pay bills from their accounts.” As before, she testified to as much at trial. And, as before, the jury found her testimony not credible. This determination should not be disturbed on appeal. III. Conclusion Ultimately, this case reduces to the question of Defendant’s credibility during her trial testimony. The jury, returning guilty verdicts on all counts, clearly rejected the bulk of her testimony and determined there was sufficient, credible evidence to find her guilty of the wholesale plunder of the assets of her incapacitated husband. For these reasons, the Superior Court should affirm the jury’s verdicts and this court’s sentencing order in all respects. -5- CP-21-CR-2048-2010 By the Court, (Date) Albert H. Masland, J. Matthew Smith, Esquire For the Commonwealth Arla M. Waller, Esquire For Defendant :saa -6-