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HomeMy WebLinkAboutCP-21-CR-0001186-2012 COMMONWEALTH : IN THE COURT OF COMMON PLEAS OF : CUMBERLAND COUNTY, PENNSYLVANIA v. : : : RICHARD BASEHORE : NO. CP-21-CR-1186-2012 IN RE: DEFENDANT’S SUPPLEMENTAL OMNIBUS PRE-TRIAL MOTION OPINION and ORDER Before the Court is Defendant’s Supplemental Omnibus Pre-Trial Motion in the nature of a motion to dismiss the sole charge against him, theft by unlawful taking or disposition. (Defendant’s Supplemental Omnibus Pre-Trial Motion, filed Aug. 9, 2012). Defendant has filed the instant motion asserting that, as the charge of theft by unlawful taking or disposition was filed more than five years after he is alleged to have accepted possession of the items he is said to have unlawfully taken, the Commonwealth is time-barred in proceeding with the underlying criminal prosecution by 42 Pa.C.S.A. 5552(b). The facts and procedural history of this case may be summarized as follows. On January 25, 2012, a criminal complaint was filed against Defendant charging one count of theft by unlawful taking or disposition, a violation of 18 Pa.C.S.A. 3921(a). On April 23, 2012, a preliminary hearing was held before Magisterial District Judge Elizabeth S. Beckley, and, following the hearing, the charge was bound over for disposition in the Court of Common Pleas. At the preliminary hearing and in support of its prima facie case for theft by unlawful taking or disposition, the testimony adduced by the Commonwealth established the following: at the time of the alleged criminal acts giving rise to the underlying charge, Defendant and his wife operated a business known as “Fitch’s Trading Post,” a consignment store located in Cumberland County, Pennsylvania. (Transcript of Proceedings, Preliminary Hearing, Apr. 23, 2012 (Beckley, D.J.) (hereinafter “N.T. __”) at 10). Jane Ellis, the complaining witness, testified at the preliminary hearing that she had done business with Fitch’s Trading Post since the 1960s when the store was operated by Catherine Fitch, Defendant’s mother-in-law. (N.T. 10). Ellis testified that, in July of 2005, she consigned approximately $72,118.00 worth of Indian artifacts and jewelry to Fitch’s Trading Post. (N.T. 11-12). The parties verbally agreed that when the consigned items were sold, Ellis was to receive sixty percent of the obtained purchase price and Fitch’s Trading Post was to receive the remaining forty percent. (N.T. 12). At some point in 2006, Ellis received a $30 money order and two checks, totaling $1,208.40. (N.T. 12-13, 26, 26- 27). Ellis testified that after she received the payments in 2006, she did not have further contact with Defendant or his wife until April of 2008. (N.T. 13). At that time, Ellis placed a phone call to Fitch’s Trading Post to inquire as to the status of her items, and to request the return of those pieces which had not yet been sold. (N.T. 13). Ellis testified that she spoke to Defendant’s wife who informed her that the items were not “all together,” and that it would take “a while to get it together.” (N.T. 13). In a letter dated July 10, 2008, Ellis received a communication from Defendant’s wife stating, among other things, that the “debt” could not be paid at that time, and indicating that Fitch’s Trading Post would “continue to sell your items until they are gone.” (N.T. 14-15). Ellis testified that in February, 2009, approximately $3,680 worth of items from her initial consignment were returned to her. (N.T. 15, 17). The next communication between Defendant, and/or his wife, and Ellis appears to have been by letter, dated September 29, 2009, whereupon Defendant indicated a displeasure with Ellis’s apparent decision to contact the Pennsylvania Attorney General’s office concerning the return of her items, and indicating that the Basehores intended to “offer [Ellis] the proceeds from the sale of our home which we put up on the market 2 recently.” (N.T. 16). Furthermore, the letter stated that “[t]his is all we have left to offer you.” (N.T. 16). Ellis testified that she continues to be owed approximately $67,000, stating that, other than the $30 money order, the two checks totaling $1,208.40, and the return of approximately $3,680 worth of items, she has received nothing more from Defendant or Defendant’s wife. (N.T. 18-19). Ellis testified that, in the fall of 2011, she was notified that Defendant and his wife had filed for bankruptcy in the United States Bankruptcy Court for the Middle District of Pennsylvania. (N.T. 40). At the preliminary hearing, the Commonwealth also presented the testimony of Jane Gonzalez, the daughter of Jane Ellis. (N.T. 48). Gonzales testified that in March, 2009 she and her husband went to Fitch’s Trading Post in an attempt to retrieve the remainder of her mother’s property that had been left for consignment. (N.T. 49). As to her interaction with Defendant and his wife, Gonzales testified as follows: They gave us I think it was about nine pieces. And I had the inventory and I had Dee sign, you know, where it was returned and date it and everything. And then we brought the pieces home. But it wasn’t near all of my mother’s belongings. And we asked, you know, where the rest of the jewelry was or where all of her things were. They said well, it was tied up, you know, may in some museum pieces and in other collections. And then after that, I kept calling because they said that they would get it together and get it back to my mom. . . . Mr. Basehore and Mrs. Basehore both individually said that the items were in collections. And, you know, maybe I was speaking to Mrs. Basehore. And we asked well, where, what collections. And alternatively Mr. and Mrs. Basehore would answer, you know, maybe in a museum collection or other collections…. It was very confusing, very evasive. It wasn’t a direct answer, like it’s in the store in the vault, it’s in here. They didn’t give us a specific answer where the items were. But they said they would get it - - Mrs. Basehore said she would get it to my mom. And after that, I made many calls weekly to the store asking them to return my phone calls because we wanted to come and pick up the items. And they were never returned. I called for a couple months regularly leaving messages on the answering machine at the store, and none of my calls were ever returned. (N.T. 48-51). 3 At the preliminary hearing, Detective Rodney Glenn Smith was called to testify on behalf of Defendant and Defendant’s wife. Counsel for Defendant’s wife elicited the following testimony: Q: Okay. And Mrs. Ellis told you at that time when you met with her on November 30, 2011, that on February 28, 2009, it was understood by both parties, meaning Ms. Ellis and Ms. Basehore, that all remaining items were to be returned, correct? A: That’s correct. (N.T. 61). In order to secure a conviction for theft by unlawful taking or disposition under 18 Pa.C.S.A. 3921, the Commonwealth must establish that a person has “unlawfully take[n], or exercise[d] unlawful control over, movable property of another with intent to deprive him thereof.” 18 Pa.C.S.A. 3921. Additionally, it must be shown that a defendant had a conscious intention to unlawfully take the property of another for the purpose of depriving him thereof at the time he received the property. Commonwealth v. Wilkes, 676 A.2d 266, 268 (Pa.Super. 1996). The statute of limitations applicable to theft crimes, including theft by unlawful taking or disposition, is found at 42 Pa.C.S.A. 5552(b), and provides, in pertinent part, as follows: (b) Major Offenses. – A prosecution for any of the following offenses must be commenced within five years after it is committed: (1) Under the following provisions of Title 18 (relating to crimes and offenses): … Section 3921 (relating to theft by unlawful taking or disposition) through Section 3933 (relating to unlawful use of computer). 42 Pa.C.S.A. 5552(b). Applying the foregoing, it is evident that, accepting as true the testimony adduced at the preliminary hearing, the Commonwealth is time-barred by 42 Pa.C.S.A. 5552(b) in proceeding 4 with a criminal prosecution of Defendant as he undisputedly obtained possession of Ellis’s $72,118.00 worth of Indian artifacts and jewelry at some point in July of 2005. The underlying criminal complaint, charging one count of theft by unlawful taking or disposition, was not brought until January 25, 2012. Thus, more than six years have elapsed since Defendant obtained possession of the property he is said to have unlawfully taken. In this case, the Commonwealth essentially concedes that the charge of theft by unlawful taking is time-barred but contends that Section 3902 of the Crimes Code, 18 Pa.C.S.A. 3902, permits the continuation of the underlying criminal prosecution of Defendant on a charge of theft by failure to make required disposition of funds received, 18 Pa.C.S.A. 3927. Section 3902 provides, in pertinent part, as follows: Conduct denominated as theft in this chapter constitutes a single offense. An accusation of theft may be supported by evidence that it was committed in any manner that would be theft under this chapter, notwithstanding the specification of a different manner in the complaint or indictment, subject only to the power of the court to ensure fair trial by granting a continuance or other appropriate relief where the conduct of the defense would be prejudiced by lack of fair notice or surprise. 18 Pa.C.S.A. 3902. Section 3902 was enacted in an attempt to “eliminate the technical distinctions between the various theft offenses recognized by the common law and embrace within the crime of ‘theft’ all those offenses previously known as larceny, fraudulent conversion, false pretenses, extortion, blackmail and receiving stolen property.” Commonwealth v. Eackles, 286 Pa.Super. 146, 156, 428 A.2d 614, 619 (1981). In Commonwealth v. Martin¸395 Pa.Super. 244, 577 A.2d 200 (1990), the Superior Court succinctly summarized the nature and purpose of Section 3902 as follows: Section 3902 is unique in the criminal law. It was made part of the Crimes Code chapter dealing with theft and related offenses to consolidate the different 5 varieties of theft into a single, comprehensive theft offense. The purpose of the statute is to avoid the types of technicalities that once distinguished different types of theft such as larceny, extortion, embezzlement, receiving stolen property, and the like. Commonwealth v. Rosenweig, 512 Pa. 111, 121-23, 522 A.2d 1088, 1094 (1987); Lowry v. State Farm Insurance Companies, 392 Pa.Super. 77, 572 A.2d 700, 705-06 (1990); Commonwealth v. Adams, 236 Pa.Super. 534, 345 A.2d 192 (1975) (Hoffman, J., concurring). These criminal offenses retain separate definitions, but are subsumed by Section 3902 into a unitary theft offense. Martin, 395 Pa.Super. at 250, 577 A.2d at 203. Despite its expansiveness, Section 3902 was not enacted to “avoid the need to confront substantive difficulties in the definition of theft offenses. The appropriate objective is to avoid procedural problems.” Id. The statute was enacted to avoid, for example, the situation where a defendant claims that he did not “misappropriate property by the means alleged but in fact misappropriated the property by some other illegal means.” Id. Thus, the legislature enacted Section 3902 to “prevent a charge based on one method of unlawfully obtaining property from being defeated by the defense that the property was acquired by a different unlawful method. . . .” Id. In short, Section 3902 permits the Commonwealth “to introduce evidence at trial of any subject to the defendant’s right to fair form of theft regardless of the form of theft charged but notice and an opportunity to defend .” Commonwealth v. Peduzzi, 488 A.2d 29, 31 (Pa.Super. 1985) (citing Commonwealth v. Lewis, 445 A.2d 798, 800 (Pa.Super. 1982)) (emphasis supplied). In this case, the Commonwealth, at oral argument and in its brief, has stated its intention to proceed with the prosecution of the defendant under a charge other than one originally brought in the information. The information itself, however, has not yet been amended to add any charge other than theft by unlawful taking. We are, therefore, faced with the issue of the procedural interplay between the dismissal of the pending charge by operation of the statute of limitations 6 and the right of the Commonwealth to pursue an alternative theory of the prosecution which may not be time-barred. This would appear to involve a matter of first impression. In Commonwealth v. Peduzzi, supra, the defendant was tried before a judge and found guilty of theft by failure to make required disposition, a violation of 18 Pa.C.S.A. 3927. Following trial, and after considering post-trial motions, the trial judge concluded that the evidence did not support the conviction and, instead of arresting judgment, amended the verdict and found the defendant guilty of theft by deception, a violation of 18 Pa.C.S.A. 3922. The trial judge justified this procedure under Section 3902, but was reversed by the Superior Court after a finding that the alteration of the verdict “after trial so as to find [the defendant] guilty of a new and different offense, without any notice or opportunity to be heard, was error.” Peduzzi, 338 Pa.Super. at 554, 488 A.2d at 31. Moreover, in Commonwealth v. Martin, supra, the Superior Court found that: prior to the case being submitted to the jury, Section 3902 requires the Commonwealth to give notice to the defendant as to which theft offense the Commonwealth is attempting to prove. Under Section 3902, the court must give defendant an opportunity to respond properly to the theft offense or offenses that the Commonwealth intends to prove. The trial judge then has a duty to instruct the jury on the elements of those theft crimes which the Commonwealth intends to prove so that the jury understands the legal bases on which its verdict can rest. Martin, 395 Pa.Super. at 252, 577 A.2d at 204. In short, the notice required to be provided to a defendant by Section 3902 must be “meaningful notice, i.e., notice of the intended consolidation at a point in the trial process where a defendant has opportunity to respond. . . .” Martin, 395 Pa.Super. at 253, 577 A.2d at 205. In the instant matter, we are constrained to dismiss the pending charge of theft by unlawful taking. Defendant has received no formal notice of the Commonwealth’s intention to proceed on any other theory of theft. At this juncture, it appears that the Commonwealth seeks 7 to get to trial to offer evidence of another crime when the underlying charge itself cannot stand. We have found no authority for the proposition that Section 3902 extends so far as to enable the Commonwealth to proceed with a criminal prosecution of a defendant where the underlying charge, indeed the only charge, is dismissed as untimely. Under the unique circumstances of this case, we are satisfied that the only way to provide sufficient and adequate notice to Defendant of a new charge is by the formal amendment of the information. Accordingly, we will enter an order which will grant the Commonwealth a limited period of time within which to amend the information, and, if the information is not amended, the case will be dismissed. ORDER th AND NOW, this 5 day of November, 2012, on consideration of Defendant’s supplemental omnibus pretrial motion, the Court finds that a prosecution in this case for theft by unlawful taking is barred by the statute of limitations. Unless the information in this case is within ten (10) days amended , to allege a violation of theft by failure to make required disposition of funds received, 18 P.S. 3927, this case shall be deemed dismissed without further order of court. BY THE COURT, Kevin A. Hess, P.J. Matthew P. Smith, Esquire Chief Deputy District Attorney John A. Abom, Esquire For the Defendant :rlm 8 COMMONWEALTH : IN THE COURT OF COMMON PLEAS OF : CUMBERLAND COUNTY, PENNSYLVANIA v. : : : RICHARD BASEHORE : NO. CP-21-CR-1186-2012 IN RE: DEFENDANT’S SUPPLEMENTAL OMNIBUS PRE-TRIAL MOTION ORDER th AND NOW, this 5 day of November, 2012, on consideration of Defendant’s supplemental omnibus pretrial motion, the Court finds that a prosecution in this case for theft by unlawful taking is barred by the statute of limitations. Unless the information in this case is within ten (10) days amended , to allege a violation of theft by failure to make required disposition of funds received, 18 P.S. 3927, this case shall be deemed dismissed without further order of court. BY THE COURT, Kevin A. Hess, P.J. Matthew P. Smith, Esquire Chief Deputy District Attorney John A. Abom, Esquire For the Defendant :rlm