Opinion
J-S73016-13 No. 3164 EDA 2012
03-18-2014
COMMONWEALTH OF PENNSYLVANIA, Appellee v. GARY BLANK, Appellant
NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
Appeal from the Judgment of Sentence September 17, 2012
In the Court of Common Pleas of Bucks County
Criminal Division at No(s): CP-09-CR-0006778-2011
BEFORE: FORD ELLIOTT, P.J.E., BOWES, and OTT, JJ. MEMORANDUM BY BOWES, J.:
Gary Blank appeals from the judgment of sentence of eighteen months to four years imprisonment followed by four years probation and restitution in the amount of $161,495.62. Sentence was imposed after Appellant was convicted at a bench trial of theft by unlawful taking, theft by failure to make required disposition of funds, theft by deception, access device fraud, receiving stolen property, and conspiracy. The convictions arose after Appellant stole money from a trust that his deceased wife, Theresa Blank, established for the benefit of their minor daughter, Alicia. We affirm.
On November 12, 2001, Theresa, who had breast cancer, created a trust, and that trust named Alicia as the sole beneficiary. The trust was funded with all of Theresa's personal assets. In 2001, Appellant was a drug addict, and, although he claimed that he was no longer addicted to drugs by the time of his wife's death, he has not been employed since 2002. Exhibit 1 (Hearing 3/27/12). The co-trustees of the November 12, 2001 trust were Appellant and Mark Mangano, the decedent's brother. The trust document provided that its assets were solely "for the benefit of" Alicia, and specifically, for her "maintenance, support, health and education" as evidenced by Alicia's standard of living during the year preceding the trust's creation. Commonwealth Exhibit 2 (Trial 4/3/12), at 2, 3. This trust contained the identical dispositive terms as an earlier trust that Theresa created on June 19, 2001. The only difference was a change in the name of a successor trustee. Theresa died from breast cancer on April 13, 2002, when Alicia was five years old. Appellant instituted a malpractice action against medical providers for failing to timely diagnose the cancer, and that case was settled for $1,000,000. Exhibit 1 (Hearing, 3/27/12). Appellant became Alicia's sole caretaker after his wife's death.
The trial evidence was as follows. In February 2006, the trust assets, which consisted of $539,007.24, were placed in a trust account for Alicia at Merrill Lynch. The estate attorney had access to the Merrill Lynch statements. Mr. Mangano, who was originally charged as Appellant's co-defendant, testified against Appellant at trial. In exchange for his promise to testify truthfully, Mr. Mangano was sentenced to probation and $50,000 in restitution.
Mr. Mangano reported that in August 2006, Appellant claimed that he was entitled to $158,676.14 from the trust assets as his marital share of the estate. Mr. Mangano assisted Appellant in obtaining the transfer of this amount of money from the trust account at Merrill Lynch. The Commonwealth established that those funds were placed into an account in Appellant's name at Wachovia Bank.
In March 2008, Mr. Mangano and Appellant created an account in the trust's name at Citizens Bank. At the beginning of March, the balance in the Merrill Lynch account was $405,000. During March, in a series of withdrawals, Mr. Mangano and Appellant placed all of the money from the Merrill Lynch account into the account at Citizens Bank. The estate attorney did not have access to any statements regarding the Citizens Bank account. In July 2008, at the suggestion of Citizens Bank personnel, Appellant and Mr. Mangano opened a second trust account, an interest-bearing money market account, at that institution.
Mr. Mangano testified that in April 2008, he and Appellant went to Citizens Bank, withdrew $35,000, and split that money between themselves. Appellant told Mr. Mangano that he could keep his one-half of the money for his personal use. The Commonwealth introduced into evidence a copy of an April 1, 2008 check from the trust account made payable to cash in the amount of $35,000, and it was signed by Mr. Mangano and Appellant. In July 2008, the co-trustees withdrew $40,000, which they divided equally between them. The Commonwealth introduced into evidence a copy of a July 30, 2008 check from the trust account made payable to cash in the amount of $40,000, and it was signed by Mr. Mangano and Appellant. Thereafter, the two co-trustees made a series of withdrawals from the Citizens Bank money market account. Mr. Mangano testified that Appellant received all of the money from the following series of withdrawals: 1) $20,000 on November 28, 2008; 2) $20,000 on January 23, 2009; 3) $5,000 on March 7, 2009; 4) $22,500 on April 17, 2009; and 5) $23,000 on May 14, 2009. Mr. Mangano stated that Appellant told Mr. Mangano that he was going to use $7,500 of the amount removed from the trust account on April 17, 2009, to pay his criminal defense attorney.
Appellant and Mr. Mangano were removed as co-trustees of Alicia's trust based upon the following events. In 2005, Appellant hired Peter Klenk, Esquire, to perform work on behalf of the trust, including an accounting. After Appellant refused to pay Mr. Klenk for his services, Mr. Klenk initiated a court action as a creditor of the trust. Appellant ignored a directive from the orphans' court to prepare a statement of the trust assets. Appellant then failed to comply with a subsequent orphans' court order to file a full accounting. Thereafter, in a final decree dated February 4, 2009, both Appellant and Mr. Mangano were removed as trustees, and Richard Margolis, Esquire, was appointed by the court to serve as the new trustee. The Commonwealth established that a copy of the decree removing Appellant as trustee was mailed to Appellant at 3147 Pasqualone Boulevard, Bensalem. That address was the marital residence, where Appellant continued to reside with Alicia following Theresa's death. Mr. Mangano admitted that he received a copy of this decree at his residence.
On July 10, 2009, Appellant and Mr. Mangano withdrew $230,000 from the Citizens Bank money market account and deposited it at Wachovia Bank. Two accounts were created at Wachovia Bank: a savings account for the benefit of Alicia and a checking account in Appellant's sole name. After this transfer was made, Mr. Mangano decided that he did not want to be involved in the administration of the trust, and he was not privy to what transpired with respect to the funds deposited at Wachovia Bank.
After being contacted by Mr. Margolis and Mr. Margolis' attorney about their inability to locate trust assets, Bensalem Township Police Detective Stephen Clark conducted an investigation in the matter. He obtained copies of the statements from Citizens Bank and Wachovia Bank accounts. He testified that, after the trust money was placed at Wachovia Bank, there were a series of "wire transfers." N.T. Trial, 4/4/12 (a.m.) at 61. These transfers were from Alicia's savings account into Appellant's checking account and did not cease until May 2010, when the trust assets were frozen by court order. Through this series of transfers, Alicia's Wachovia Bank account, which had an initial balance of $230,000, was reduced to $157,522.85.
The Commonwealth established that the sole source of deposits into Appellant's Wachovia Bank account was from Alicia's Wachovia Bank account. From his account, Appellant paid his mortgage and utility bills, which amounted to approximately $2,000 a month. Other debits from Appellant's personal account at Wachovia Bank included: payments to singles.net; a purchase at a lingerie store; $4,000 in U-2 tickets; a $428.35 payment for a district court fine; $65.00 at a bar; $6,000 to the law firm of Stolee and Jonas; a purchase at a liquor store; and $1,200 to defense attorney Michael Parlow.
On May 17, 2010, Detective Clark filed a restraining order to freeze the remaining funds in Alicia's accounts. By that time, the trust balance at Citizens Bank was $11,394.80; the balance of the Wachovia Bank savings account was $157,522.85. There were no trust assets at Merrill Lynch.
Based on these events, Appellant was charged with the above enumerated offenses of theft, receiving stolen property, access device fraud, and conspiracy. Appellant originally was represented by the public defender's office. His bench trial commenced on April 3, 2012, where Appellant appeared pro se. Appellant moved to suppress bank records recovered pursuant to two search warrants, which Appellant claimed were not supported by probable cause. That motion was denied, and the case proceeded. When the trial resumed on April 4, 2012, Appellant was represented by private counsel. The final day of trial occurred on June 28, 2012, where Appellant again appeared pro se. Private counsel withdrew his appearance with the court's approval. Appellant was convicted of all charges on June 28, 2012, and proceeded to sentencing on September 17, 2012. Appellant filed a pro se notice of appeal on October 10, 2012 from his judgment of sentence. Present counsel entered his appearance on Appellant's behalf, and a counseled brief was filed in this Court.
Appellant presents two issues for our review:
A. Did the suppression court err in failing to suppress the fruits of two search warrants?Appellant's brief at 4. Initially, we note that since "a successful sufficiency of the evidence claim warrants discharge on the pertinent crime, we must address this issue first." Commonwealth v. Toritto, 67 A.3d 29, 33 (Pa.Super. 2013) (en banc). We therefore will address Appellant's contentions in reverse order. In assessing the sufficiency of the evidence,
B. Was the evidence sufficient to support the guilty verdicts?
we evaluate the record "in the light most favorable to the verdict winner giving the prosecution the benefit of all reasonable inferences to be drawn from the evidence." Commonwealth v. Widmer, 560 Pa. 308, 744 A.2d 745, 751 (Pa. 2000). "Evidence will be deemed sufficient to support the verdict when it establishes each material element of the crime charged and the commission thereof by the accused, beyond a reasonable doubt." Commonwealth v. Brewer, 876 A.2d 1029, 1032 (Pa.Super. 2005). Nevertheless, "the Commonwealth need not establish guilt to a mathematical certainty." Id.; see also Commonwealth v. Aguado, 760 A.2d 1181, 1185 (Pa.Super. 2000) ("The facts and circumstances established by the Commonwealth need not be absolutely incompatible with the defendant's innocence."). Any doubt about the defendant's guilt is to be resolved by the fact finder unless the evidence is so weak and inconclusive that, as a matter of law, no probability of fact can be drawn from the combined circumstances. See Commonwealth v. DiStefano, 782 A.2d 574, 582 (Pa.Super. 2001).Commonwealth v. Lynch, 72 A.3d 706, 707-08 (Pa.Super. 2013) (citation omitted). Additionally, we do not analyze a sufficiency claim on a diminished record, and we review all evidence actually received. Commonwealth v. Koch, 39 A.3d 996 (Pa.Super. 2011). Accordingly, we consider the evidence that Appellant contends should have been suppressed.
The Commonwealth may sustain its burden by means of wholly circumstantial evidence. See Brewer, 876 A.2d at 1032. Accordingly, "the fact that the evidence establishing a defendant's participation in a crime is circumstantial does not preclude a conviction where the evidence coupled with the reasonable inferences drawn therefrom overcomes the presumption of innocence." Id. (quoting Commonwealth v.
Murphy, 795 A.2d 1025, 1038-39 (Pa.Super. 2002)). Significantly, we may not substitute our judgment for that of the fact finder; thus, so long as the evidence adduced, accepted in the light most favorable to the Commonwealth, demonstrates the respective elements of a defendant's crimes beyond a reasonable doubt, the appellant's convictions will be upheld. See Brewer, 876 A.2d at 1032.
We now outline the elements of the pertinent offenses. A person commits theft by unlawful taking or disposition "if he unlawfully takes, or exercises unlawful control over, movable property of another with intent to deprive him thereof." 18 Pa.C.S. § 3921(a). Deprivation of property occurs if a person: (1) "withhold[s] property of another permanently;" or (2) "dispose[s] of the property so as to make it unlikely that the owner will recover it." 18 Pa.C.S. § 3901. Theft by Deception is defined by 18 Pa.C.S. § 3922 which provides, in relevant part, that "[a] person is guilty of theft if he intentionally obtains or withholds property of another by deception." 18 Pa.C.S. § 3922(a). Deception occurs when a person "creates or reinforces a false impression." Id. Theft by failure to make required disposition is outlined in 18 Pa.C.S. § 3927(a):
A person who obtains property upon agreement, or subject to a known legal obligation, to make specified payments or other
disposition, whether from such property or its proceeds or from his own property to be reserved in equivalent amount, is guilty of theft if he intentionally deals with the property obtained as his own and fails to make the required payment or disposition. The foregoing applies notwithstanding that it may be impossible to identify particular property as belonging to the victim at the time of the failure of the actor to make the required payment or disposition.
Receiving stolen property has the following elements, "A person is guilty of theft if he intentionally receives, retains, or disposes of movable property of another knowing that it has been stolen, or believing that it has probably been stolen, unless the property is received, retained, or disposed with intent to restore it to the owner." 18 Pa.C.S. § 3925.
Appellant was convicted of access device fraud under 18 Pa.C.S. § 4106(a)(2), which provides that someone is guilty of that offense where he
publishes, makes, sells, gives, or otherwise transfers to another, or offers or advertises, or aids and abets any other person to use an access device knowing that the access device is counterfeit, altered or incomplete, belongs to another person who has not authorized its use, has been revoked or canceled or for any reason is unauthorized by the issuer or the device holder[.]An access device includes, "Any card, including, but not limited to, a credit card, debit card and automated teller machine card, plate, code, account number, personal identification number or other means of account access that can be used alone or in conjunction with another access device to obtain money, goods, services or anything else of value or that can be used to transfer funds." 18 Pa.C.S. § 4106(d).
Finally, an individual is
guilty of conspiracy with another person or persons to commit a crime if with the intent of promoting or facilitating its commission he:18 Pa.C.S. § 903(a).
(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 crime.
Herein, the evidence established that Appellant removed significant sums of money from a Citizens Bank trust account that was to be spent solely for the benefit of Alicia, who was the legal owner of the money, and, to the extent that Mr. Mangano was not given the money, Appellant retained those funds. After Mr. Mangano refused to be involved with the Wachovia Bank accounts, Appellant alone transferred Alicia's money in the Wachovia Bank trust account into an account that was in Appellant's sole name, and, in turn, spent some of that money on his own personal expenses. These actions at Wachovia Bank likewise constituted theft of Alicia's funds and receipt of stolen property.
Appellant committed theft by deception by giving the false impression that the trust funds were to be spent on Alicia when he placed money from the Merrill Lynch trust account into a Citizens Bank account titled in the trust name, but took and retained money from that account for himself. He performed another false impression that he was going to use trust money for Alicia's benefit when he placed trust money from Citizens Bank into a trust account at Wachovia Bank, but then used that money by transferring it into his own account. Appellant was guilty of theft by failure to make required disposition of funds because he continually took money from the trust and did not make the required disposition of those amounts by spending them all on Alicia. Appellant specifically told Mr. Mangano that he was going to pay his attorney's fees from trust money, which was a failure to make the required disposition of trust funds. Further, Appellant used Alicia's money to satisfy personal expenses with his expenditures from Wachovia Bank.
Appellant repeatedly committed access device fraud when he used account numbers to access accounts belonging to Alicia's trust, and took money from those accounts or placed money from them into an account in his sole name. Appellant was not authorized to personally retain account funds in the trust's name or to transfer trust funds into an account in his sole name. The conspiracy was established because the transactions involving the removal of the funds in derogation of the trust terms at Merrill Lynch and Citizens Bank were done with the agreement and aid of Mr. Mangano. Hence, the proof was sufficient to sustain the convictions.
Appellant's specific challenges are as follows. First, he claims that there was no evidence that he did not spend the money on Alicia, as required by the terms of the trust. We disagree. Mr. Mangano reported that Appellant admitted to Mr. Mangano that he was going to use $7,500 of Alicia's money to pay for Appellant's personal attorney's fees. This admission establishes that Appellant did not spend that money on behalf of Alicia. Additionally, the Commonwealth proved that money from Alicia's account at Wachovia Bank was the only source of money in an account in Appellant's sole name. Money from the Wachovia Account in Appellant's name went to pay personal expenses that could not be incurred on behalf of a young girl, including lawyer's fees, liquor, lingerie, and a dating website.
Finally, we observe the following. From March 2008 to May 2010, the trust assets went from $400,000 to $170,000. This amount approximates $115,000 yearly. The trial evidence established that Appellant's mortgage and utilities were $2,000 a month. Assuming, arguendo, that the trust could properly be charged with all of the housing expenses, which also inured to the benefit of Appellant himself, that means that Appellant would have had to spend about $90,000 yearly on Alicia. It does not cost $90,000 a year to provide a child with clothing, food, and entertainment expenses.
Appellant also maintains that the Commonwealth failed to prove that he did not intend to repay the money to Alicia. Initially, we observe that the Commonwealth established that Alicia was the legal owner of property that Appellant personally took. We are unaware of any case law, and Appellant refers us to none, that requires the Commonwealth to prove that a thief does not intend to repay money that belongs to another where the money in question has not been loaned to the thief by the owner and where the thief has appropriated the funds for his own use. Moreover, Appellant allowed Mr. Mangano to take money belonging to Alicia and told him to use it as he wished. This action established that Appellant did not intend to repay the trust for that money since it was retained by another person. Additionally, the Commonwealth presented evidence that Appellant was unemployed after 2002 and did not have the means to repay the vast sums of money that he removed from the trust. Hence, we reject this challenge to the sufficiency of the evidence.
In connection with his conviction for access device fraud, Appellant suggests that there was no proof that he had notice that his trusteeship was revoked. This argument does not implicate the sufficiency of the evidence. Appellant accessed the trust accounts at Citizens and Wachovia Banks and transferred money from Alicia's accounts. He either took the money outright or transferred the money into accounts in his sole name. He also used his debit card for personal expenses on an account containing Alicia's money. Whether or not he was still trustee, he was not authorized to access Alicia's money and place it in his own name. Finally, Appellant suggests that there was merely a co-mingling of funds. We disagree. The Commonwealth proved that trust funds were consistently removed from trust accounts and that Appellant personally retained those amounts or placed them in bank accounts in his sole name. The Commonwealth also proved that there were no deposits from Appellant into a trust account. Accordingly, we reject Appellant's challenges to the sufficiency of the evidence.
We now address Appellant's first position. Appellant maintains that the warrants used to obtain the bank records for the accounts in his name and that of the trust at Citizens and Wachovia Banks were infirm. Specifically, he avers that there was nothing in the affidavits "to suggest that Appellant had committed a crime." Appellant's brief at 15. Probable cause, which is tasked to the magisterial district judge to ascertain, must be premised solely upon the facts outlined within the four corners of the warrant itself. Commonwealth v. Harvard, 64 A.3d 690 (Pa.Super. 2013). In this context, our review "of a suppression court's ruling is confined primarily to questions of law." Id. at 696 (citation omitted). Police possess probable cause when "the facts and circumstances within the officer's knowledge are sufficient to warrant a person of reasonable caution in the belief that an offense has been or is being committed." Id. at 697 (quoting Commonwealth v. Hernandez, 935 A.2d 1275, 1284 (Pa. 2007)).
The issuing authority's responsibility is "simply to make a practical, common-sense decision whether, given all of the circumstances set forth in the affidavit before him, including the veracity and basis of knowledge of persons supplying hearsay information, there is a fair probability that . . . evidence of a crime will be found in a particular place." Harvard, supra at 697 (quoting Commonwealth v. Torres, 764 A.2d 532, 537 (Pa. 2001)). When reviewing the magisterial district judge's decision, the suppression court's duty is to ensure that there was "a substantial basis for concluding that probable cause existed. In so doing, the reviewing court must accord deference to the issuing authority's probable cause determination, and must view the information offered to establish probable cause in a common-sense, non-technical manner." Harvard, supra at 697 (quoting Torres, supra at 538).
Detective Stephen Clark was the affiant for the warrants, which were issued on May 17, 2012. The affidavits contained the identical facts, as follows. Richard Margolis, Esquire, and Brett Murphy, Esquire, went to Bensalem Township Police to report that they suspected that Appellant and Mark Mangano were committing fraud. Mr. Margolis said that he was the trustee of a trust created by Theresa Blank for the benefit of her daughter, Alicia, and that Theresa died on April 13, 2002. Mr. Murphy was the attorney for the trustee. The two attorneys reported that all of Mrs. Blank's assets had been placed in the trust and that, after Theresa's death, Mark Mangano and Appellant were the original trustees. On February 5, 2009, the orphans' court issued a final decree removing Appellant and Mangano as co-trustees and appointing Mr. Margolis as trustee. On June 17, 2009, Mr. Murphy sent Appellant a copy of the decree and asked that all information about the location of any trust assets be given to Mr. Margolis. Neither Appellant nor Mangano responded to that request. Additionally,
13. Through Counsel, Petitioner discovered that the assets of the Trust were previously held at Merrill Lynch under Account Number 818-41835.Affidavits, 5/17/10, at 2.
14. On March 6, March 11, and March 12, of 2008, wire transfers were made from the Merrill Lynch account to an account at Citizens Bank, liquidating all assets from the Merrill Lynch account in the amount of $405,061.03.
15. At least one portion of the Trust assets were being held at Citizens Bank under Account Numbers 622140-355-7 (Business Partners Checking 111 in Trust of Theresa Blank) and 622208-185-5 (Premium Business Money Market in Trust of Theresa Blank.[)]
16. On July 10, 2009, less than one month after Counsel for Petitioner sent notice of the February 5, 2009 Decree to Gary Blank and Mark Mangano, a withdrawal was made from the Citizens Bank Trust Account in the amount of $230,000.00 by Gary Blank and Mark Mangano.
17. This withdrawal was made despite Counsel for Petitioner's service of notice to Gary Blank and Mark Mangano of their removal as Co-Trustees of the Trust.
18. As of August 5, 2009, the total Trust assets remaining at Citizens Bank were $11,618.75.
19. As of August 5, 2009, the location of Trust Assets in the amount of $393,442.28 is unknown to the current Trustee or his Counsel.
20. On April 6, 2010, Mark Mangano (removed Trustee) advised Counsel Brett Murphy that approximately $160,000.00 of the said trust is in one or several accounts that are based at the Wachovia Bank branch located in Bensalem Township. (Account numbers unknown.)
This affidavit thus established the following. Appellant and Mr. Mangano had refused to provide information regarding trust assets to the trustee of that trust and the trustee was unable to locate trust assets worth approximately $400,000. Those assets originally were deposited at Merrill Lynch, but were transferred to Citizens Bank where the balance was depleted by approximately $170,000 in sixteen months. Then, soon after Appellant and Mangano were notified of their removal as trustees, they depleted nearly the entire balance of the Citizens Bank trust account. Mangano admitted that there were accounts containing trust money at Wachovia Bank.
This affidavit clearly provided probable cause to believe that trust assets were being stolen. The trustees would not provide any information about the assets and expended $170,000 in sixteen months, which is significantly more than the amount of money needed to support one child. That money was depleted while it was located in Citizens Bank accounts. Soon after removal and notice that they were not authorized to deal with trust funds, Mr. Mangano and Appellant transferred the money from Citizens Bank. Some trust assets were at Wachovia Bank. All of the information in question was provided by virtually unimpeachable sources--named attorneys, one of whom had been entrusted with overseeing the matter by the orphans' court. The information was within the personal knowledge of the reporting individuals. Hence, the facts were sufficient to warrant a person of reasonable caution in the belief that Mr. Mangano and Appellant had stolen trust money and evidence of that crime could be found in the bank records of Citizens and Wachovia Banks. We therefore reject Appellant's assertion that the affidavits failed to reveal that Appellant may have committed a crime.
Judgment of sentence affirmed. Judgment Entered. __________
Joseph D. Seletyn, Esq.
Prothonotary