Opinion
J. S26016/17 No. 1709 MDA 2016
05-25-2017
COMMONWEALTH OF PENNSYLVANIA v. ROBERT ANTHONY KOLOVICH, APPELLANT
NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
Appeal from the Judgment of Sentence July 1, 2016
In the Court of Common Pleas of Snyder County
Criminal Division at No(s): CP-55-CR-0000105-2015 CP-55-CR-0000325-2014 BEFORE: BOWES, J., DUBOW, J., and FITZGERALD, J. MEMORANDUM BY DUBOW, J.:
Former Justice specially assigned to the Superior Court.
Appellant, Robert Anthony Kolovich, appeals from the Judgment of Sentence entered in these consolidated cases on July 1, 2016, in the Snyder County Court of Common Pleas following his conviction of four counts of Deceptive Business Practices. After careful review, we affirm.
Appellant was the owner of Lifetime Choice Windows, a business that purported to sell windows and perform deck-capping services. Beginning in May 2013, Appellant entered into various contracts in which he agreed to either purchase windows for customers or to cap their decks. Appellant accepted down-payments for those services; however, Appellant did not perform on the contracts or return the down-payments he received.
On October 2, 2014, the Commonwealth charged Appellant at Case No. 325-2014 with two counts of Deceptive Business Practices and one count of Theft by Deception arising from a June 28, 2013 contract with Mary Romig to perform deck-capping services. On March 20, 2015, the Commonwealth charged Appellant at Case No. 105-2015 with two additional counts of Deceptive Business Practices and one additional count of Theft by Deception arising from an October 4, 2013 contract with Chad Keister, Brent Saylor, and Saylor's construction firm Saylor & Page Construction for window procurement.
18 Pa.C.S. § 4107(a)(2); 18 Pa.C.S. § 4107(a)(6); and 18 Pa.C.S. § 3922(a)(1).
On September 9, 2015, the Commonwealth filed a Motion in Limine to introduce evidence pursuant to Pa.R.E. 404(b) of crimes, wrongs, or other acts on the part of Appellant, and to Consolidate Case No. 325-2014 with Case No. 105-2015 for trial. On November 2, 2015, the trial court granted the portion of the Motion seeking to consolidate the matters for trial. With respect to the Motion in Limine, on December 11, 2015, the court issued an order directing the Commonwealth to file an Amended Motion providing more detail as to the type of other crimes, wrongs, or acts the Commonwealth sought to introduce. The Commonwealth complied with the Order; however, the court denied the Commonwealth's Motion and Amended Motion on January 26, 2016.
On March 23, 2016, the Commonwealth again amended the Motion in Limine, providing the court with more information. The court granted the Amended Motion on April 7, 2016.
The Commonwealth sought to admit evidence that it had charged Appellant on September 3, 2014, in Union County at Case No. 273-2014 with similar crimes arising from an October 26, 2013 service contract to perform construction services, where Appellant had failed to perform the services under the contract or repay the funds the victims paid him.
On April 4, 2016, Appellant filed a Motion to Bar Prosecution pursuant to 18 Pa.C.S. § 110, arguing that the Commonwealth should have joined the instant cases with Union County Case No. 273-2014, in which a jury had acquitted Appellant of similar charges. The trial court denied this Motion on April 18, 2016.
Following Appellant's trial on April 26, 2016, the jury convicted Appellant in both cases of Deceptive Business Practices and acquitted him of Theft by Deception. On July 1, 2016, the court sentenced Appellant to an aggregate sentence of 6 to 60 months' incarceration. The court awarded Appellant 201 days' credit for time served.
Appellant filed a Post-Sentence Motion on July 11, 2016, which the trial court denied. This appeal followed. Appellant and the trial court complied with Pa.R.A.P. 1925.
Appellant raises the following four issues on appeal:
1. Did error occur when the [t]rial [c]ourt permitted consolidation?Appellant's Brief at 7.
2. Did error occur where the [t]rial [c]ourt permitted admission of other alleged crimes, wrongs[,] and/or acts?
3. Did the [t]rial [c]ourt err in denying Appellant's Motion under 18 Pa.C.S.[] Sec. 110?
4. Was evidence insufficient to convict Appellant as the Commonwealth did not prove guilt beyond a reasonable doubt, nor did the Commonwealth prove that Appellant had the requisite intent to establish guilt?
In his first issue, Appellant challenges the trial court's Order granting the Commonwealth's Motion for Consolidation, arguing that the Commonwealth failed to follow the proper procedures for consolidation. Id. at 11.
Where an appellant challenges the interpretation of the rules of criminal procedure, "our standard of review is de novo and our scope of review is plenary." Commonwealth v. Libengood , 152 A.3d 1057, 1059 (Pa. Super. 2016) (citation omitted).
The consolidation of criminal cases is controlled by Pa.R.Crim.P. 582. Rule 582(B)(1) requires that the Commonwealth notify a defendant of its intent to consolidate separate indictments or informations at or before arraignment. See Pa.R.Crim.P. 582(B)(1). If, however, such notice is not provided, "any party may move to consolidate for trial separate indictments or informations, which motion must ordinarily be included in the omnibus pretrial motion." Pa.R.Crim.P. 582(B)(2) (emphasis added).
Here, the Commonwealth did not notify Appellant of its intent to consolidate the instant cases at or before his April 13, 2015 arraignment. Rather, on September 23, 2015, the Commonwealth filed a Motion to Consolidate. Appellant argues that because the Commonwealth did not notify him of its intent at or before his arraignment, and failed to file an Omnibus Pretrial Motion within 30 days of his arraignment, the trial court erred in granting the Commonwealth's Motion to Consolidate. Appellant's Brief at 11-12.
See Pa.R.Crim.P. 579(A), which directs filing of the omnibus pretrial motion within 30 days, unless the opportunity did not exist or counsel was not aware of the grounds for the motion.
We disagree with Appellant. Although Rule 582(B)(2) provides that a Motion to Consolidate would "ordinarily be included in the omnibus pretrial motion[,]" nothing in the Rule precludes a later filing. Moreover, we note that Appellant has not alleged that the court's Order consolidating his cases prejudiced him in any way. See Commonwealth v. Boyd , 461 A.2d 1294, 1298 (Pa. Super. 1983) (noting that "courts have held that consolidation of separate informations for trial is a matter of discretion with the trial judge, and that the exercise of this discretion will be reversed only for manifest abuse of discretion or prejudice and clear injustice to the defendant."). Accordingly, Appellant is not entitled to relief.
In his second issue, Appellant alleges that the trial court erred in admitting Pa.R.Crim.P. 404(b) evidence of crimes, wrongs, or other acts on the part of Appellant. Appellant's Brief at 12-13. He claims that the court erred in entertaining, and subsequently granting, the Commonwealth's Second Amended Motion because, in so doing, it permitted the Commonwealth to take a "third bite at the apple[,]" which "flies in the face of [Appellant's] constitutional rights to due process, compulsory process and informed nature of charges under Article One Section Nine of the Pennsylvania Constitution and the Fifth, Sixth and 14th Amendments [sic] to the U.S. Constitution." Id. at 13.
Our standard of review of the admission of evidence is well-settled:
The admission of evidence is a matter vested within the sound discretion of the trial court, and such a decision shall be reversed only upon a showing that the trial court abused its discretion. In determining whether evidence should be admitted, the trial court must weigh the relevant and probative value of the evidence against the prejudicial impact of the evidence. Evidence is relevant if it logically tends to establish a material fact in the case or tends to support a reasonable inference regarding a material fact. Although a court may find that evidence is relevant, the court may nevertheless conclude that such evidence is inadmissible on account of its prejudicial impact.
Notably, Appellant does not challenge the substance of the admitted evidence, or the purpose for which the trial court permitted its admission, or the probative versus prejudicial value of the evidence. Rather, Appellant claims that, in granting the Commonwealth's Second Amended Motion to admit the evidence, the court violated Appellant's due process rights. Appellant has not, however, developed this argument in any meaningful way and has not supported this averment with citation to controlling authority or to the place in the record where he preserved this claim. Accordingly, we find this issue waived. See Pa.R.A.P. 2117(c); 2119(c), (e).
In his third issue, Appellant claims the trial court erred in denying his Section 110 Motion. Appellant baldly claims that because the Commonwealth accused him of the same criminal conduct in Union and Snyder Counties, Section 110(1)(ii) barred the Commonwealth from prosecuting him in Snyder County after his October 30, 2015 Union County acquittal. Appellant's Brief at 13-14.
The Commonwealth has accused Appellant of similar conduct in Snyder and Union, as well as nine other counties. Snyder and Union counties comprise the 17th Judicial District.
Appellant challenges the trial court's interpretation and application of 18 Pa.C.S. § 110. Thus, "our standard of review is de novo, and our scope of review is plenary." Commonwealth v. Fithian , 961 A.2d 66, 71 n.4 (Pa. 2008).
Section 110 provides, in relevant part, as follows:
§ 110. When prosecution barred by former prosecution for different offense
Although a prosecution is for a violation of a different provision of the statutes than a former prosecution or is based on different facts, it is barred by such former prosecution under the following circumstances:
(1) The former prosecution resulted in an acquittal or in a conviction as defined in section 109 of this title (relating to when prosecution barred by former prosecution for the same offense) and the subsequent prosecution is for:
18 Pa.C.S. § 110(1)(ii).(ii) any offense based on the same conduct or arising from the same criminal episode, if such offense was known to the appropriate prosecuting officer at the time of the commencement of the first trial and occurred within the same judicial district as the former prosecution unless the court ordered a separate trial of the charge of such offense[.]
As has been summarized by our Supreme Court, Section 110(1)(ii) contains four requirements which, if met, preclude subsequent prosecution due to a former prosecution for a different offense:
(1) the former prosecution must have resulted in an acquittal or conviction;Fithian , 961 A.2d at 72.
(2) the current prosecution is based upon the same criminal conduct or arose from the same criminal episode as the former prosecution;
(3) the prosecutor was aware of the instant charges before the commencement of the trial on the former charges; and
(4) the current offense occurred within the same judicial district as the former prosecution.
Appellant also argues that the trial court's reliance on Commonwealth v. Nolan , 855 A.2d 834 (Pa. 2003), is misplaced in that Nolan 's discussion differentiating criminal enterprises and episodes is not applicable to this case. Id. at 13.
In Nolan , supra , the Commonwealth charged the defendant with stealing and reselling more than 25 vehicles from individuals and dealerships in Lackawanna and Luzerne Counties over a seven-month period. Nolan , 855 A.2d at 835-36. Ultimately, pursuant to a plea agreement, Appellant pled guilty in Lackawanna County to nine counts of Receiving Stolen Property and one count of Theft. Id. at 835. Three months later, at the start of his Luzerne County trial, Nolan moved for the dismissal of all charges pending against him, asserting, inter alia, the applicability of Section 110's compulsory joinder rule. Id. at 837. The trial court granted the motion in part, and dismissed all charges that the trial court concluded overlapped with the Lackawanna County prosecution. Id. A Luzerne County jury convicted Nolan of six counts of Theft by Unlawful Taking and five counts of Receiving Stolen Property. Id.
Following a direct appeal, Nolan unsuccessfully sought post-conviction ineffective assistance of counsel relief related to his Section 110 claim. Id. at 838. The post-conviction relief court found that "[Nolan] failed to demonstrate how his elaborate criminal operation, which transpired on different dates, with different victims, different police departments, and which was separately charged in different counties eight months apart, were 'logically and temporally related' such as might constitute a single criminal episode." Id . (citing Commonwealth v. Hude , 458 A.2d 177, 183 (Pa. 1983) (holding that, at a minimum, § 110 requires events be "logically and temporally related[,]" which is determined by considering, among other things, the degree to which the events raise duplicative issues of law and fact)). Our Supreme Court agreed with the post-conviction relief court, and concluded that the defendant's multi-faceted illegal operation did not constitute a single criminal episode for purposes of Section 110. Nolan , 855 A.2d at 841.
In the instant matter, Appellant does not analyze or distinguish the facts in the instant matter from those in Nolan. The trial court concluded that, although Appellant's "actions may constitute one criminal enterprise[, they do not constitute] one criminal episode." We agree with the trial court that the Section 110(1)(ii) did not bar Appellant's subsequent prosecution in Snyder County. We conclude that, as with the actions in Nolan , Appellant's acts, which occurred in different locations and over a period of many months in Snyder and Union Counties, lacked the logical and temporal relationship to constitute one criminal episode, which would have necessitated the cases' joinder. Accordingly, this claim fails.
In his last issue, Appellant claims the Commonwealth failed to adduce sufficient evidence to sustain his conviction. Appellant's Brief at 14. Appellant argues that, in the absence of any evidence of his intent to deceive, the Commonwealth merely proved that he was a "less than stellar businessman[, not] a criminal." Id. at 14-15.
We apply the following standard of review when considering a challenge to the sufficiency of the evidence:
In determining whether the evidence was sufficient to support a defendant's conviction, we must review the evidence admitted during the trial along with any reasonable inferences that may be drawn from that evidence in the light most favorable to the Commonwealth as the verdict winner. If we find, based on that review, that the jury could have found every element of the crime beyond a reasonable doubt, we must sustain the defendant's conviction.Commonwealth v. Crawford , 24 A.3d 396, 404 (Pa. Super. 2011) (citation omitted). "The Commonwealth is not required to depend upon proof by direct evidence, but may also meet its burden by circumstantial evidence alone." Id. at 405.
The Crimes Code defines the offense of Deceptive Business Practices, in relevant part, as either "sell[ing], offer[ing] or expos[ing] for sale, or deliver[ing] less than the represented quantity of any commodity or service[,]" or "mak[ing] or induc[ing] others to rely on a false or misleading written statement for the purpose of obtaining property or credit." See 18 Pa.C.S. §§ 4107(a)(2), (a)(6).
Although Appellant asked for, and received, a jury instruction regarding intent, the statutory definition of Deceptive Business Practices does not contain any element of intent. --------
We have reviewed the record in this case and conclude that the jury as fact-finder had sufficient evidence on which to base Appellant's convictions. In conducting our review, we find the trial court ably addressed and analyzed Appellant's sufficiency argument in its Rule 1925(a) Opinion. See Trial Ct. Op., 9/13/16, at 5-9. We, therefore, adopt that portion of the Opinion as our own. The parties are directed to attach the September 13, 2016 Opinion to any future filings.
Judgment of Sentence affirmed. Judgment Entered. /s/_________
Joseph D. Seletyn, Esq.
Prothonotary Date: 5/25/2017
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Commonwealth v. Antidormi , 84 A.3d 736, 749 (Pa. Super. 2014) (citation omitted).