HomeMy WebLinkAboutCP-21-CR-2885-2005
COMMONWEALTH
IN THE COURT OF COMMON PLEAS OF
CUMBERLAND COUNTY, PENNSYLVANIA
v.
DANNIE LEDELL COOK: CP-21-CR-2885-2005
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
two counts of conspiracy to commit theft by deception, each graded 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 two-
and-a-halfmonths nor more than 23 months.2
From the judgment of sentence, Defendant has filed an appeal to the
Pennsylvania Superior Court. 3 The bases for the appeal have been expressed in a
statement of matters complained of on appeal as follows:
The Court erred in not granting Defendant's objection to the use of a
p[er]emptory challenge on an African American woman.
The evidence was not sufficient to support a finding of guilt,
particularly since the alleged victim admitted that she ordered products.4
This opinion in support of the judgment of sentence is written pursuant to
Pennsylvania Rule of Criminal Procedure 1925(a).
STATEMENT OF FACTS
On a challenge to 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 11,2006.
4 Defendant's Concise Statement of Maters Complained of on Appeal, filed August 30,3006.
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 Dannie Ledell Cook, 34,5 and
Ronald John Day, 43,6 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. Day "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. Day 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 Bank.16 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.
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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's
associate19 and were successfully negotiated?O In early June of 2005,21 Defendant
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's associate was
unsuccessful when he attempted to negotiate it.23
Ms. Myers was induced to enter into these contracts by Defendant's
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 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 pointed out, Defendant 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
During the peremptory challenge phase of jury selection in the case,
Defendant's counsel raised a Batson challenge33 to the Commonwealth's strike of
an African-American woman from the venire.34 The facts surrounding this issue
may be summarized as follows:
Defendant, an African-American,35 and his associate, a Caucasian,36 were
being tried together. 37 The various charges against them were misdemeanors; each
defense counsel was afforded five peremptory challenges, and the Commonwealth
was afforded ten peremptory challenges, for a total of twenty?8 A jury of twelve
regular jurors and two alternates was ultimately to be selected.39
Among the 34-person venire was one African-American,40 a woman whose
exact age was not known to counsel41 but who appeared to the assistant district
29 NT. 81, 85,112.
30 NT. 154.
31 Information filed January 9, 2006.
32 NT. 99-100, 102, 179-80.
33 Batson v. Kentucky, 476 U.S. 79, 106 S. Ct. 1712,90 L. Ed. 2d 69 (1986).
34 NT. 28.
35 NT. 29.
36 NT. 29.
37 NT. 31.
38 NT. 4, 27.
39 NT. 31.
40 NT. 26, 28-29.
attorney trying the case to be relatively young. 42 One of his strategies in jury
selection in this case was to secure a jury which was relatively older (over 50)
rather than younger, because the alleged victim was in her eighties.43 To this end,
only two of the nine venirepersons whose ages appear of record whom the
prosecutor struck were over fifty years old, one being 55 and one being 51, and the
average age of these venirepersons was 38.1.44 By contrast, the defense seemed to
employ the same strategy in reverse: of the ten venirepersons whom the defense
struck, only two were under fifty years of age, one being 47 and the other being
48, and the average age of these venirepersons was 58.2.45 Significantly,
Defendant's counsel accepted the explanation of the prosecutor that his reason for
striking the juror in question was based upon a strategy of securing a relatively
older jury and was not based upon her race.46 However, it was the position of
Defendant's counsel that the age of a potential juror "is [not] a valid independent
basis [for exercising a peremptory challenge]. ,,47
The court was satisfied that the peremptory challenge exercised by the
prosecutor in this case was based upon an age-related strategy and was not
associated with her race. Accordingly, the Batson challenge interposed by the
defense was denied.48
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.49 Defendant presented no evidence.5o Following deliberations,
41 NT. 28-29, 34.
42 NT. 29-30, 36.
43 NT. 28-29, 37.
44 NT. 186-87.
45 NT. 186-87.
46 NT. 30-31.
47 NT. 28.
48 NT. 31.
49 NT. 173-74.
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the jury found Defendant guilty of conspiracy to commit theft by deception in
connection with the $3,950.00 check drawn on the Citizens Bank account on May
31, 2005, and guilty of conspiracy to commit theft by deception in connection with
the $3,950.00 check drawn on the M&T Bank account on May 31,2005.51
DISCUSSION
Batson challenge. The holding in Batson v. Kentucky, 476 U.S. 79, 106 S.
Ct. 1712, 90 L. Ed. 2d 69 (1986), has been summarized by the Pennsylvania
Supreme Court as follows:
In Batson, the United States Supreme Court established that the Equal
Protection Clause of the Fourteenth Amendment precludes the exercise of
racially discriminatory peremptory challenges by the prosecution in state
criminal trials. Most notably, Batson sets forth a three-part test for
examining a criminal defendant's claim that a prosecutor exercised
peremptory challenges in a racially discriminatory manner: first, the
defendant must make a prima facie showing that the circumstances give
rise to an inference that the prosecutor struck one or more prospective
jurors on account of race; second, if the prima facie showing is made, the
burden shifts to the prosecutor to articulate a race-neutral explanation for
striking the juror(s) at issue; and third, the trial court must then make the
ultimate determination of whether the defense has carried its burden of
proving purposeful discrimination.
Commonwealth v. Fletcher, 580 Pa. 403, 422, 861 A.2d 898, 909 (2004) (citations
omitted).
A credible explanation by a prosecutor that an African-American
venireperson was struck on the basis of age and not because of race will satisfy the
race-neutral Batson goal. See, e.g., State v. Everett, 472 N.W. 2d 864 (Minn.
1991).
In the present case, the prosecutor's representation to the court that his
exercise of a peremptory challenge with respect to the African-American
venireperson in question was based upon a race-neutral strategy involving jurors'
ages was supported circumstantially by the record, was accepted by Defendant's
50 NT. 174-76.
51 See Verdict slips, June 6, 2006.
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counsel as sincere, and was found credible by the court. Accordingly, Defendant's
Batson challenge was denied.
Sufficiency of the evidence. 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 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 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).
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. Id, 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
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(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.
"Circumstantial evidence may provide proof of [a] conspiracy."
Commonwealth v. Bricker, 2005 P A Super. 309, ,-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 alone 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) returned on
May 31, 2005, and obtained more money 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 as of May 31, 2005, Defendant had
conspired with his associate to obtain two checks from the victim in the amounts
of $3,950.00 by deception, and had in fact done so.
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
8
H. Anthony Adams, Esq.
Assistant Public Defender
9