Com. v. Humphrey, E. ( 2015 )

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NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
COMMONWEALTH OF PENNSYLVANIA IN THE SUPERIOR COURT OF
PENNSYLVANIA
Appellee
v.
EDWARD HUMPHREY
Appellant No. 1661 EDA 2015
Appeal from the Judgment of Sentence February 7, 2014
In the Court of Common Pleas of Northampton County
Criminal Division at No(s): CP-48-CR-0002906-2013
BEFORE: DONOHUE, J., MUNDY, J., and MUSMANNO, J.
MEMORANDUM BY MUNDY, J.: FILED NOVEMBER 06, 2015
Appellant, Edward Humphrey, appeals from the February 7, 2014
aggregate judgment of sentence of 32 to 64 months of incarceration,
followed by four years of probation, after a jury convicted him of home
improvement fraud and theft by deception.1 After careful review, we affirm.
Appellant’s two-day jury trial commenced on January 6, 2014. Mr.
Leeander Gray testified that on July 8, 2011, he entered into a contract with
Appellant for home repairs, including a new roof, in the amount of
$32,000.00. N.T., 1/6-7/14, at 15-18. Appellant advised Mr. Gray that the
home repairs could be completed in seven to ten days. Id. at 20. Mr. Gray
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1
73 P.S. § 517.8(a)(2) and 18 Pa.C.S.A. § 3922(a)(1), respectively.
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gave Appellant $15,000.00, payable to Total Remodeling, toward the down
payment. Id. at 22. On July 19, 2011, Mr. Gray’s wife wrote a check for an
additional $10,000.00 to Total Remodeling, and gave the check to Appellant.
Id. at 25-26. Within a week, Appellant began demolition at the Grays’
home. Id. On August 18, 2011, at Appellant’s request, the Grays paid
Appellant an additional $9,842.93, for a total of $34,842.93. Id. at 28-30.
Thereafter, Appellant ceased work on the Grays’ home. Mr. Gray testified,
“It was basically we still had a shell of the home, the electrical wasn’t done
yet, the drywall needed to be hung, the carpets needed to be put back down
and the painting.” Id. at 31. Although Mr. Gray tried repeatedly to contact
Appellant, he could not reach him and “gave up.” Id. Appellant never
returned to complete the work on the Grays’ home, nor did he remit a
refund to the Grays. Id. at 33, 39, 68. Mr. Gray had to hire another
contractor to complete the construction. Id. at 44. Consequently, Mr. Gray
contacted the police. Id. at 39.
Mr. James Reilly testified to “meeting up” with Appellant in January or
February of 2011. Id. at 74-75. Appellant told Mr. Reilly that he could
teach him how to start a windows, roofing and siding business. Id. at 76.
At Appellant’s suggestion, Mr. Reilly started a company on March 15, 2011,
in Mr. Reilly’s name, but “set up” by Appellant. Id. at 81-83. The name of
the company was Total Remodeling of Northeast Pennsylvania. Id. at 84.
Mr. Reilly explained that Appellant was “running the whole company,” and
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Mr. Reilly was trying to learn from Appellant. Id. at 86-87, 91-92. Mr.
Reilly testified as follows.
[T]here was – there came a point where [Appellant]
wasn’t showing up. He was disappearing for days
and God knows what he was doing but then, you
know, he just come back [sic] in like, you know,
save the day like everything is fine. And everything
wasn’t fine because, you know, people were looking
for him and, you know, I didn’t know what to help
[sic], to say to people and what was going on so—
Id. at 89. Mr. Reilly asked Appellant to remove Mr. Reilly’s name from the
Total Remodeling company and Appellant did so on June 20, 2011. Id. at
92.
Ms. Jennifer Tillema testified to answering Appellant’s Craigslist ad for
secretarial employment in May of 2011. Id. at 128-130. Ms. Tillema began
working for Appellant and, within a few months, Appellant discussed with
Ms. Tillema “becoming an owner or member in the company.” Id. at 132.
The discussion occurred “towards the end when Mr. Reilly was not around
and we were trying to figure out if we could move forward and try to
complete the work.” Id. at 133. On August 2, 2011, Ms. Tillema
accompanied Appellant to the bank to open an account for the company.
Id. at 137-137. At Appellant’s direction, the bank account was opened in
Ms. Tillema’s name, with Appellant as a “signer.” Id. at 139, 152. By the
end of August, Ms. Tillema had “very limited access” to Appellant and “just
couldn’t get ahold of him regularly.” Id. at 141-142. Ms. Tillema began to
conduct “due diligence” and went to the Grays’ home, where she “didn’t
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even have to go into the home” to see that it was in poor condition. Id. at
142-143. At this point, Total Remodeling had “no money” to return to the
Grays, and Ms. Tillema left the Grays’ home “very upset.” Id. at 144. She
testified, “[t]heir home was destroyed.” Id. at 154.
Pennsylvania State Trooper Michael Hodgskin testified to investigating
the Grays’ report of fraud. After hearing from Mr. Gray at the police
barracks, Trooper Hodgskin went to the Grays’ home, where he “observed
the entire second floor basically just [un]inhabitable. It was basically under
construction, framing, partial roof, no insulation, exposed wiring.” Id. at
160. Trooper Hodgskin opined that “there was definitely something very
wrong … [t]his was not just a bad business transaction, this was beyond just
shoddy work … I didn’t think that they could live there. I thought it was
uninhabitable. I don’t know how they were staying there, to be honest.”
Id. at 161. Trooper Hodgskin attempted to make contact with Appellant
“with no avail.” Id. at 163. Based on this investigation, a criminal
complaint was filed against Appellant.
The Commonwealth then introduced the testimony of two individuals
who had prior dealings with Appellant: Mrs. Vernita Gilliam and Mr. Michael
McLoughlin.
Mrs. Gilliam testified to being a longtime resident of Colorado. Id. at
181. In June 2010, she and her husband hired Appellant, who said he was
the owner of “Total Remodeling of Lakewood, Colorado” to paint their home.
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Id. at 182. After Appellant completed the job, the Gilliams hired Appellant
to finish their basement, add a sun porch and complete a patio. Id. at 183-
184. On June 29, 2010, the Gilliams executed a written contract with
Appellant and Total Remodeling for the work and remitted a $25,000.00
down payment. Id. at 188-191. Appellant began the project in early
September 2010, after which Appellant requested an additional $24,183.50.
Id. at 193. Although the Gilliams paid Appellant a total of $49,183.50, the
work was never completed. Id. at 194. Mrs. Gilliam tried to contact
Appellant by email and telephone with no success. Id. Appellant’s workers
completed demolition but never began construction. Id. at 195, 200. The
Gilliams never received a refund and had to hire another contractor to finish
the work. Id. at 197.
Mr. Michael McLoughlin testified to contacting Appellant and Total
Remodeling of Northeast Pennsylvania to complete a “flashing job.” Id. at
206. According to Mr. McLoughlin, Appellant “walked around [the home]
and came back with other problems that he saw that should be rectified.”
Id. at 207. Appellant suggested repairs to Mr. McLoughlin’s deck, cellar,
and home exterior. Id. at 208. Mr. McLoughlin executed a contract with
Appellant on May 12, 2011. Id. at 210. Mr. McLoughlin gave Appellant his
credit card information for payment. Id. at 212. Afterwards, the work
“sped up and slowed down,” but was never completed, and Mr. McLoughlin
had to hire another contractor to complete the work. Id. at 213-216.
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Nonetheless, Appellant charged a total of $105,000.00 to Mr. McLoughlin’s
credit card. Id. at 216. Mr. McLoughlin never received a refund. Id. at
217.
Based on the above evidence, the jury found Appellant guilty of home
improvement fraud and theft by deception. On February 7, 2014, the trial
court sentenced Appellant to consecutive terms of 16 to 32 months of
incarceration on each conviction, followed by four years of probation.
The trial court summarized a portion of the somewhat convoluted
procedural history that ensued as follows.
On February 11, 2014, [Appellant] filed a pro
se Notice of Appeal. On February 12, 2014,
[Appellant’s] Trial Counsel, Joseph Yannuzzi, Esquire,
filed a Petition for Reconsideration of Sentence.
Attorney Yannuzzi subsequently withdrew from the
case and [Appellant] was appointed Attorney Robert
Sletvold, Esquire, to represent him. On February 17,
2014, Attorney Sletvold filed Post-Sentence Motions
on behalf of [Appellant] including a Motion for Arrest
of Judgment, Motion for Judgment of Acquittal,
Motion for a New Trial and Motion to
Modify/Reconsider Sentence. On March 3, 2014,
[Appellant] filed a Motion for Post-Conviction
Collateral Relief. This Court scheduled a hearing for
April 3, 2014 to address the pending motions, the
Notice of Appeal and the Motion for Post-Conviction
Collateral Relief. At the hearing, Attorney Sletvold
represented to this Court that the motion filed by
Attorney Yannuzzi was filed to preserve [Appellant’s]
appellate rights before he withdrew his appearance
and Attorney Sletvold was appointed. Attorney
Sletvold agreed to withdraw the pending Appeal and
asked this Court to proceed with Post-Sentence
Motions. [Appellant’s initial appeal was discontinued
by the Superior Court of Pennsylvania on April 28,
2014 at Appellant’s request.]
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Trial Court Opinion and Order, 6/3/14, at 1-2.
The trial court denied Appellant’s post-sentence motions on June 3,
2014. Appellant filed a timely notice of appeal on July 2, 2014. Both the
trial court and Appellant complied with Pennsylvania Rule of Appellate
Procedure 1925, with the trial court on August 14, 2014 filing its Rule
1925(a) statement, in which it adopted and incorporated its opinion and
order dated June 3, 2014.
Appellant explained that his second appeal was delayed as follows.
After being granted two extensions of time to
file [Appellant’s] brief on appeal, Attorney Sletvold
failed to file a timely brief, and the Superior Court
dismissed the appeal by Order of Court dated March
9, 2015.
On March 1[8], 2015, [Appellant] filed a new
PCRA Petition based on prior counsel’s failure to
timely file a brief in his appeal. Attorney James
Brose was appointed to represent [Appellant].
Appellant’s Brief at 7.
On May 19, 2015, the trial court issued an order granting Appellant
permission to appeal nunc pro tunc. Appellant filed the within appeal on
June 2, 2015. The parties again have complied with Rule 1925. On June
26, 2015, the trial court filed a Rule 1925(a) statement in which it reiterated
its adoption of its opinion and order dated June 3, 2014.
On appeal, Appellant presents a single issue for our review.
1. Did the [trial c]ourt abuse its discretion by
permitting the testimony, under Pa. Rule of Evidence
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404(b), of two witnesses who claimed to have had
similar experiences with the [A]ppellant as the
complainant in this case?
Id. at 4.
We begin by noting our well-settled standard of review regarding
evidentiary issues.
The admissibility of evidence is at the discretion of
the trial court and only a showing of an abuse of that
discretion, and resulting prejudice, constitutes
reversible error. An abuse of discretion is not merely
an error of judgment, but is rather the overriding or
misapplication of the law, or the exercise of
judgment that is manifestly unreasonable, or the
result of bias, prejudice, ill-will or partiality, as
shown by the evidence of record. Furthermore, if in
reaching a conclusion the trial court over-rides or
misapplies the law, discretion is then abused and it is
the duty of the appellate court to correct the error.
Commonwealth v. Fischere, 70 A.3d 1270, 1275 (Pa. Super. 2013) (en
banc) (internal quotation marks and citations omitted), appeal denied, 83
A.3d 167 (Pa. 2013).
Instantly, on December 23, 2013, the Commonwealth filed notice
pursuant to Pennsylvania Rule of Evidence 404(b), in which it stated that it
intended to “introduce evidence at trial consisting of evidence of other
crimes, wrongs or acts” of Appellant, and that such evidence would “be
offered as proof of motive, opportunity, intent, preparation, plan,
knowledge, identity, absence of mistake or accident or as otherwise
relevant.” Notice Pursuant to Pennsylvania Rule of Evidence 404(b),
12/23/14.
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This Court recently detailed our analysis under Rule 404(b) as follows.
Rule 404. Character Evidence; Crimes or Other
Acts
***
(b) Crimes, Wrongs or Other Acts.
(1) Prohibited Uses. Evidence of a crime, wrong, or
other act is not admissible to prove a person’s
character in order to show that on a particular
occasion the person acted in accordance with the
character.
(2) Permitted Uses. This evidence may be
admissible for another purpose, such as proving
motive, opportunity, intent, preparation, plan,
knowledge, identity, absence of mistake, or lack of
accident. In a criminal case this evidence is
admissible only if the probative value of the evidence
outweighs its potential for unfair prejudice.
***
Pa.R.E. 404(b)(1)-(2). “[E]vidence of prior crimes is
not admissible for the sole purpose of demonstrating
a criminal defendant’s propensity to commit crimes.”
Commonwealth v. Melendez–Rodriguez, 856
A.2d 1278, 1283 (Pa. Super. 2004). Nevertheless,
“[e]vidence may be admissible in certain
circumstances where it is relevant for some other
legitimate purpose and not utilized solely to blacken
the defendant’s character.” Id. Specifically, other
crimes evidence is admissible if offered for a non-
propensity purpose, such as proof of an actor’s
knowledge, plan, motive, identity, or absence of
mistake or accident. Commonwealth v. Chmiel,
585 Pa. 547, 889 A.2d 501 (2005). When offered for
a legitimate purpose, evidence of prior crimes is
admissible if its probative value outweighs its
potential for unfair prejudice. Commonwealth v.
Hairston, 624 Pa. 143, 84 A.3d 657 (2014), cert.
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denied, ––– U.S. ––––, 135 S.Ct. 164, 190 L.Ed.2d
118 (2014).
When ruling upon the admissibility of evidence
under the common plan exception, the trial
court must first examine the details and
surrounding circumstances of each criminal
incident to assure that the evidence reveals
criminal conduct which is distinctive and so
nearly identical as to become the signature of
the same perpetrator. Relevant to such a
finding will be the habits or patterns of action
or conduct undertaken by the perpetrator to
commit crime, as well as the time, place, and
types of victims typically chosen by the
perpetrator. Given this initial determination,
the court is bound to engage in a careful
balancing test to assure that the common plan
evidence is not too remote in time to be
probative. If the evidence reveals that the
details of each criminal incident are nearly
identical, the fact that the incidents are
separated by a lapse of time will not likely
prevent the offer of the evidence unless the
time lapse is excessive. Finally, the trial court
must assure that the probative value of the
evidence is not outweighed by its potential
prejudicial impact upon the trier of fact. To do
so, the court must balance the potential
prejudicial impact of the evidence with such
factors as the degree of similarity established
between the incidents of criminal conduct, the
Commonwealth’s need to present evidence
under the common plan exception, and the
ability of the trial court to caution the jury
concerning the proper use of such evidence by
them in their deliberations.
Commonwealth v. G.D.M., Sr., 926 A.2d 984, 987
(Pa. Super. 2007), appeal denied, 596 Pa. 715, 944
A.2d 756 (2008) (quoting Commonwealth v.
Smith, 431 Pa. Super. 91, 635 A.2d 1086, 1089
(1993)).
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Commonwealth v. Tyson, 119 A.3d 353, 358-359 (Pa. Super. 2015) (en
banc).
We note for purposes of our analysis that Pennsylvania Rule of
Evidence 404(b), permitting the admission of evidence of prior bad acts for
limited purposes, is not restricted to evidence of crimes that have been
proven beyond a reasonable doubt in court; it encompasses both prior
crimes and prior wrongs and acts, the latter of which, by their nature, often
lack definitive proof. Commonwealth v. Lockcuff, 813 A.2d 857 (Pa.
Super. 2002), appeal denied, 825 A.2d 638 (Pa. 2003).
In this case, Appellant asserts that the trial court abused its discretion
when it admitted evidence “of two prior customers of [Appellant] because
they told a similar story to the victim in this case.” Appellant’s Brief at 12.
Appellant maintains that “there are likely hundreds, if not thousands, of
home contractor disputes with the same similarities ….” Id. at 15.
Appellant states as follows.
The “similarities” among the witnesses’ situations
and the victim’s in this case are so general that they
could be applied to almost every homeowner/home
contractor dispute. There is nothing distinctive
about them and nothing that shows a “signature” of
[Appellant]. Moreover, one of the three disputes
arose in Colorado so the events cannot be said to be
similar geographically and the fact that the disputes
occurred over 2 years does not show a common
pattern or scheme even though the Trial Court held
as much.
Id.
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Significantly, in the argument section of his brief, Appellant fails to cite
to the notes of testimony or otherwise detail his contention that the
admitted evidence was not admissible under Pennsylvania Rule of Evidence
404(b). The Commonwealth, on the other hand, specifically counters as
follows.
The evidence and testimony of both Mrs.
Gilliam and Mr. McLoughlin establishes a common
scheme used by Appellant when he contracted with
the Grays. The name of the companies and the
contracts used by Appellant were similar to the
contract with the Grays. Additionally, Appellant
convinced the homeowners to contract with him on
additional remodeling around their homes, which
Appellant knew he was not capable of completing.
Each house was left in a state of disrepair only after
a small amount of work was done, and none of the
parties were able to get in contact with Appellant.
Nevertheless, Appellant took money from Mr.
McLoughlin, the Gilliams, and the Grays in the full
amount of the contracts or greater, never completed
the remodeling contracts, and never returned money
for incomplete work. At the time Appellant
contracted with the Grays he had the intent to take
their money, but had no intention of ever completing
the remodeling work. Because similar situations had
occurred with Mrs. Gilliam and Mr. McLoughlin, this
evidence was properly admitted at trial to show
intent, common scheme or plan, and the absence of
mistake or accident.
Commonwealth Brief at 17-18.
We agree with the Commonwealth. Likewise, the trial court concluded
that the Commonwealth’s evidence of Appellant’s prior bad acts was relevant
and offered the following detailed reasoning.
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This Court properly allowed evidence of
[Appellant’s] prior bad acts through the testimony of
Gilliam and McLoughlin. There was credible evidence
presented at trial of [Appellant’s] prior dealings with
customers who contracted with him for home repairs
and paid [Appellant] large sums of money only to
have [Appellant] start but never finish the work. []
Gilliam testified at trial that she entered into a
contract with [Appellant] in 2010 to make repairs to
her home in Colorado. Gilliam testified that at
[Appellant’s] request, she paid twenty-five thousand
dollars ($25,000.00) on July 21, 2010 and an
additional twenty-four thousand one hundred eighty-
three dollars and fifty cents ($24,183.50). The work
was started but never completed at her home and
her home was left in disrepair, forcing her to hire
and pay another contractor to re-do the work.
McLoughlin testified that he entered into a
contract with [Appellant] in 2011 to make repairs to
his home in Pennsylvania. McLoughlin testified he
gave [Appellant] two credit card numbers to make
charges when necessary with the amount charged to
McLoughlin’s credit cards totaling one hundred and
five thousand dollars ($105,000.00). Further,
McLoughlin testified the work was started but was
never completed. McLoughlin’s money was never
returned to him and he had to hire someone else to
fix and finish the repairs.
The credible evidence presented by Gilliam and
McLoughlin tended to demonstrate a common plan or
scheme by [Appellant] to defraud homeowners. The
prior bad acts occurred within two (2) years of the
crimes committed in the instant case and the
similarities were apparent. Therefore, [Appellant’s]
prior bad acts were properly admitted into evidence
through Gilliam and McLoughlin’s testimony. The
probative value of this evidence was not outweighed
by unfair prejudice. The jury was given the following
instruction regarding the prior bad act evidence:
Ladies and gentlemen of the jury, you heard
evidence tending to prove the defendant
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committed some improper conduct for which
he is not on trial. I’m speaking of the
testimony of this last witness. This evidence
was before you for a limited purpose, tending
to show the absence of mistake, strategic
planning, knowledge, opportunity or
preparation. This evidence is not to be
considered by you in any other way other than
for the purpose I just stated. You must not
regard this evidence as showing this defendant
is a person of bad character or criminal
tendencies from which you may be inclined to
infer guilt … that same instruction applies to
the next witness, also.
(N.T., 1/7/14, pg. 204).
All three victims contacted [Appellant] for home
improvement repairs. They each entered into a
contract with [Appellant’s] company through
[Appellant]. In each instance, [Appellant]
represented himself as the owner of the company
and directed the victims to remit payment to him.
[Appellant] asked each victim for additional payment
once the job was started, which each victim paid.
[Appellant] began the work in each case, but did not
complete it and did not return any money to any of
the victims. The prior bad acts and the instant
charges against [Appellant] were so similar in
nature; this Court properly admitted this evidence.
Moreover, any prejudice that could have resulted
from the admission of the prior bad acts was cured
by the limiting instruction given by the Court.
Trial Court Opinion, 6/3/14, at 11-13 (internal citations omitted).
The trial court’s reasoning is consistent with both the certified record
and applicable legal authority. We thus conclude the trial court did not
abuse its discretion in permitting the testimony of Mrs. Gilliam and Mr.
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McLoughlin. See Fischere, supra.2 Accordingly, we affirm Appellant’s
judgment of sentence.
Judgment of sentence affirmed.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 11/6/2015
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2
To the extent Appellant argues that the Commonwealth’s evidence should
not have been admitted under Rule 403 because its prejudicial effect
outweighed its probative value, we reject that argument as well. Generally,
Rule 403 will exclude otherwise admissible evidence where the “probative
value is outweighed by a danger of one or more of the following: unfair
prejudice, confusing the issues, misleading the jury, undue delay, wasting
time, or needlessly presenting cumulative evidence.” Pa.R.E. 403. As noted
by both the parties and the trial court in this case, the jury was provided
with a curative instruction relative to Mrs. Gilliam and Mr. McLoughlin’s
testimony.
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