HomeMy WebLinkAboutCP-21-CR-2887-2005
COMMONWEALTH
IN THE COURT OF COMMON PLEAS OF
CUMBERLAND COUNTY, PENNSYLVANIA
v.
RONALD JOHN DA Y
CP-21-CR-2887-2005
IN RE: OPINION PURSUANT TO P A. R.A.P. 1925
OLER, 1., October II, 2006.
In this criminal case, Defendant was found guilty following a jury trial of
three counts of theft by deception, and two counts of conspiracy to commit theft
by deception, each count being graded as a felony of the third degree, in
connection with a home-repair scam perpetrated upon an 81-year-old woman. 1 He
was sentenced to a period of imprisonment of not less than three-and-a-half
months nor more than 23 months?
From the judgment of sentence, Defendant has filed an appeal to the
Pennsylvania Superior Court.3 An order of this court directing that Defendant file
a statement of matters complained of on appeal4 has not been responded to.
In the absence of a statement of matters complained of on appeal, this
opinion in support of the judgment of sentence pursuant to Pennsylvania Rule of
Criminal Procedure 1925(a) will address the sufficiency of the evidence.
STATEMENT OF FACTS
In an evaluation of the sufficiency of the evidence in a criminal case, the
evidence is to be viewed "in the light most favorable to the Commonwealth" and
"all reasonable inferences in the Commonwealth's favor" are to be entertained.
Commonwealth v. Jones, 449 Pa. Super. 58, 61, 672 A.2d 1353, 1354 (1996),
1 Order of Court, June 6, 2006.
2 Order of Court, August, 8, 2006.
3 Defendant's Notice of Appeal, August 30, 2006.
4 Order of Court, August 31, 2006.
quoting Commonwealth v. Carter, 329 Pa. Super. 490, 495-96, 478 A.2d 1286,
1288 (1984).
Viewed in this light, the evidence in this case may be summarized as
follows. On Tuesday, May 25, 2005, Defendant Ronald John Day, 43,5 and
Dannie Ledell Cook, 34,6 appeared on premises located at 72 Maple Drive,
Walnut Bottom, Cumberland County, Pennsylvania, owned by Beatrice Myers, an
81-year-old widow who had lived in the home since 19747 and whose husband had
died in 1998.8 Defendant and Mr. Cook "insisted" on working on her driveway,9
which was not in need of repair, 10 but she initially resisted their importunities. 11
Ultimately, however, Ms. Myers signed two contracts with the company
which Defendant and Mr. Cook worked for,12 and gave them four checks. 13 One
contract, signed on the day they appeared, provided for the replacement of two
windows in her home for $2,250.00.14 The second, dated a few days later,
provided for the replacement of five more windows in the home and a coating of
the driveway, at a cost of $7,900.00.15
On May 25, 2005, Ms. Myers gave Defendant and his associate a check for
$2,250.00, drawn on a checking account which she had at Citizens Bank16 On
May 31, 2005, she gave them a check for $3,950.00 drawn on the Citizens Bank
5 NT. 180, Trial, June 5-6, 2006 (hereinafter NT. ~.
6 NT. 180.
7 NT. 43, 46, 119.
8 NT. 43.
9 NT. 46.
10 NT. 46.
11 NT. 46.
12 NT. 49; Commonwealth's Exhibit Nos. 3,5.
13 NT. 51-55, 57-58; Commonwealth's Exhibit Nos. 2,4.
14 NT. 54.
15 NT. 59.
16 NT. 52, 54.
2
account17 and a check for $3,950.00 drawn on a checking account which she had
at M&T Bank18 All of these checks were made payable to Defendant 19 and were
successfully negotiated?O In early June of 2005,21 Defendant's associate
convinced Ms. Myers that her M&T Bank check in the amount of $3,950.00 had
not cleared, and obtained another check from her for that amount on her Citizens
Bank account.22 At that point, however, her Citizens Bank account had been
drained of funds sufficient to cover the check and Defendant was unsuccessful
when he attempted to negotiate it. 23
Ms. Myers was induced to enter into these contracts by a promise that she
would get back the money which she was paying for replacement of the
windows?4 The contracts themselves said nothing about any such
reimbursement,25 but the ploy succeeded because Ms. Myers was under the
impression that Defendant's associate had been involved in the original
installation of the windows26 and she felt he was trustworthy?7 Not surprisingly,
the amounts being charged for the replacement of the windows were grossly in
excess of reasonable charges for such work 28
17 NT. 57-58.
18 NT. 58.
19 NT. 52, 58, 75, 77.
20 NT. 60, 110-11; Commonwealth's Exhibit NO.6.
21 NT. 81.
22 NT. 56, 59-60.
23 NT. 81-82, 85,113,117.
24 NT. 49, 50, 86-87.
25 NT. 73-74; Commonwealth's Exhibit Nos. 3,5.
26 NT. 50. However, as Defendant's counsel for Defendant's associate pointed out at trial, his
client would have been a child of fifteen at the time. NT. 71.
27 NT. 50.
28 NT. 140-41, 151.
3
In early June, 2005, a representative from Citizens Bank alerted Ms. Myers'
son to the activity in her checking account,29 and her son contacted law
enforcement authorities. 30 In connection with the aforesaid three checks,
Defendant (and his associate) were charged with three counts of theft by
deception, three counts of theft by unlawful taking, and three counts of conspiracy
to commit theft by deception.31 After the initiation of criminal proceedings, Ms.
Myers' son succeeded in obtaining a refund of the money she had paid.32 The
prosecutions of Defendant and his associate were joined for purposes of trial. 33
At the conclusion of the Commonwealth's case, the court sustained a
defense motion for judgment of acquittal with respect to the charges of theft by
unlawful taking.34 Following deliberations, the jury found Defendant guilty of ( a)
theft by deception in connection with the $2,250.00 check drawn on the M&T
account on May 25, 2005, (b) theft by deception in connection with the $3,950.00
check drawn on the M&T account on May 31, 2005, (c) theft by deception in
connection with the $3,950.00 check drawn on the Citizens Bank account on May
31, 2005, (d) conspiracy to commit theft by deception in connection with the
$3,950.00 check drawn on the M&T Bank account on May 31, 2005, and (e)
conspiracy to commit theft by deception in connection with the $3,950.00 check
drawn on the Citizens Bank account on May 31, 2005?5
DISCUSSION
In an evaluation of the sufficiency of the evidence presented at trial, the
proper test is "whether, viewing the evidence admitted at trial in the light most
29 NT. 81, 85,112.
30 NT. 154.
31 Information filed January 5, 2006.
32 NT. 99-100, 102, 179-80.
33 Notice of Trial Joinder, filed January 9, 2006.
34NT. 173-74.
35 See Verdict slips, June 6, 2006.
4
favorable to the Commonwealth and drawing all reasonable inferences in the
Commonwealth's favor, there is sufficient evidence to enable the trier of fact to
find every element of the [crime] charged beyond a reasonable doubt."
Commonwealth v. Jones, 449 Pa. Super. 58, 61, 672 A.2d 1353, 1354 (1996),
quoting Commonwealth v. Carter, 329 Pa. Super. 490, 495-96, 478 A.2d 1286,
1288 (1984). The trier of fact is "free to believe all, part or none of the evidence."
Commonwealth v. Grisavage, 512 Pa. 540, 543, 517 A.2d 1256, 1257 (1986)
(citations omitted).
Under Section 3922 of the Crimes Code, the offense of theft by deception is
committed when a person intentionally obtains or withholds property of another
by deception. Act of December 6, 1972, P.L. 1482, Sl, as amended, 18 Pa. C.S.
s3922(a). A person deceives if he intentionally:
(1) creates or reinforces a false impression, including false
impressions as to law, value, intention or other state of mind . . .;
(2) prevents another from acquiring information which would affect
his judgment of a transaction; or
(3) fails to correct a false impression which the deceiver previously
created or reinforced, or which the deceiver knows to be influencing
another to whom he stands in a fiduciary or confidential relationship.
Id
Under Section 903 of the Crimes Code, a person is guilty of conspiracy
with another person or persons to commit a crime if with the intent of promoting
or facilitating its commission he
(1) agrees with such other person or persons that they or one or more
of them will engage in conduct which constitutes such crime or an attempt
or solicitation to commit such crime; or
(2) agrees to aid such other person or persons in the planning or
commission of such crime or of an attempt or solicitation to commit such
cnme.
Act of December 6, 1972, P.L. 1482, Sl, as amended, 18 Pa. C.S. s903(a). An
overt act by one of the conspirators in furtherance of the conspiracy is a
prerequisite for conviction. Id, s903(e).
5
"Circumstantial evidence may provide proof of [a] conspiracy."
Commonwealth v. Bricker, 2005 P A Super. 307, ,-r17, 882 A.2d 1008, 1017.
[A]n agreement can be inferred from a variety of circumstances
including, but not limited to, the relation between the parties, knowledge
of and participation in the crime, and the circumstances and conduct of the
parties surrounding the criminal episode. These factors may coalesce to
establish a conspiratorial agreement beyond a reasonable doubt where one
factor along might fail.
Id (citation omitted).
In the present case, the Commonwealth's evidence tended to show, inter
alia, that Defendant and his associate (a) appeared uninvited on the 81-year-old
victim's property on May 25, 2005, (b) importuned her to engage them in
driveway work which was not necessary, (b) represented falsely to her that
payments for replacement of windows would be reimbursed to her, (c) obtained a
check from her for $2,250.00 upon this pretense, (c) returned on May 31,2005,
and obtained two more checks, each for $3,950.00 from her, for such work, (d) a
few days thereafter extracted another check from her based on a false
representation that one of her earlier checks had not cleared, and (e) employed
exorbitant rates. These circumstances, in the court's view, more than warranted
the jury's conclusion beyond a reasonable doubt that Defendant had obtained
checks, which he negotiated, from the victim in the amounts of $2,250.00,
$3,950.00, and $3,950.00 by deception, and that a conspiracy to do so had existed
between him and his associate in connection with the latter two checks.
For the foregoing reasons, it is believed that the judgment of sentence
appealed from in this case was properly entered.
BY THE COURT,
1. Wesley Oler, Jr., 1.
Michelle H. Sibert, Esq.
Chief Deputy District Attorney
6
Paul B. Orr, Esq.
50 E. High Street
Carlisle, P A 17013
Attorney for Defendant Day
7