Com. v. McGogney, G. ( 2023 )

J-S43038-22
NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
COMMONWEALTH OF PENNSYLVANIA : IN THE SUPERIOR COURT OF
: PENNSYLVANIA
:
v. :
:
:
GLENN DAVID MCGOGNEY :
:
Appellant : No. 1088 EDA 2022
Appeal from the Judgment of Sentence Entered March 29, 2022
In the Court of Common Pleas of Lehigh County Criminal Division at
No(s): CP-39-CR-0001985-2019
BEFORE: DUBOW, J., KUNSELMAN, J., and NICHOLS, J.
MEMORANDUM BY NICHOLS, J.: FILED FEBRUARY 14, 2023
Appellant Glenn David McGogney appeals from the judgment of
sentence imposed after a jury convicted him of two counts of theft by
deception.1 Appellant argues that his convictions were barred by the
applicable statute of limitations. We affirm.
The trial court summarized the relevant facts and procedural history of
this matter as follows:
At trial, [George and Frances Fetchko] testified about retaining
[A]ppellant to represent the estate of their son [Nicholas Fetchko],
who died in an automobile accident on November 20, 2010, at the
age of 28. They detailed [A]ppellant’s deceptions regarding the
insurance claims connected with the death of Nicholas Fetchko.
The Fetchkos had known [A]ppellant for over forty (40) years.
Mrs. Fetchko and [A]ppellant’s wife are first cousins. [A]ppellant
and his wife paid a condolence call at the Fetchkos’ home two
weeks after their son’s funeral, and [he] told them that he would
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1 18 Pa.C.S. § 3922(a)(1).
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“handle it” (the insurance claims) for them. No power of attorney
or any documents were signed by the Fetchkos authorizing
[A]ppellant to sign their names. During the next five years,
[A]ppellant came up with excuses for why the litigation had not
been settled, including that [A]ppellant was “fighting with the
IRS.”
[A]ppellant eventually told the Fetchkos that they would be
getting their money in “two weeks. And two weeks would go by
and two weeks turned into years.” Once the Fetchkos realized
something was wrong, Attorney Dean Berg was contacted to
investigate the status of their claims. Attorney Berg was retained
in 2015, and recovered $330,371.45 from [A]ppellant in 2016.
Attorney Berg had known the Fetchkos for many years and had
done “mostly estate work” on their behalf. Once retained in this
matter, Attorney Berg reached out to [A]ppellant by phone calls
and letters. [A]ppellant informed Attorney Berg that the claims
had been settled, but again used the IRS as the reason the funds
were not distributed. Attorney Berg’s first letter to [A]ppellant
was sent on July 31, 2015, and when the settlement funds were
still not forwarded by [A]ppellant, Attorney Berg sent a second
letter on September 17, 2015. [A]ppellant responded with
correspondence from the IRS dated June 16, 2015, demanding
payment, but that correspondence refers to [A]ppellant, not the
Fetchkos. Finally, Attorney Berg sent a third letter to [A]ppellant
dated December 2, 2015, explaining to him that the IRS excuse
appeared to be bogus, and the “estate of Nicholas T. Fetchko had
nothing to do with your personal finances, and/or business
interests.” Attorney Berg also expressed concerns that the
proceeds of the settlement may be in jeopardy due to reasons
including [A]ppellant’s recent trip to Las Vegas. A series of e-
mails were also introduced between [A]ppellant and Attorney
Berg, with [A]ppellant promising the checks would be
forthcoming, but using the IRS cover story and then his medical
condition to explain the delay. [Appellant] also implied that some
of the funds would be obtained from his “Royal Alliance”
retirement account. Eventually, [A]ppellant provided a cashier’s
check, [which was] not from [A]ppellant’s IOLTA account, in the
sum of $330,371.45 on January 29, 2016. The check was made
out to Attorney Berg, who deposited it in his IOLTA account.
[Attorney Berg] then paid the Fetchkos from that trust account.
The Commonwealth’s last witness, and the last witness at trial,
was Kevin Nelson, who was employed by Erie Insurance Group
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(hereinafter Erie). He worked at Erie as a property and casualty
records examiner (i.e., a custodian of the records). One of the
documents identified at trial was a letter sent by [A]ppellant to an
employee of Erie dated January 11, 2011. The letter requests
checks to be forwarded to [A]ppellant’s office “as expeditiously as
possible,” payable to George M. Fetchko and Appellant. The letter
also contained releases signed by George M. Fetchko. Mr. Nelson
explained the breakdown of the funds disbursed, with a total
amount of $510,000.00. Checks were issued to [A]ppellant at his
address on January 17, 2011, and January 20, 2011. All of the
checks were cashed.
Trial Ct. Op., 9/19/22, at 3-5 (footnotes omitted and formatting altered).
[A]ppellant, without the knowledge of the Fetchkos, settled their
various claims with Erie Insurance in 2011 for $510,000.00, but
[he] did not distribute the proceeds. Instead, he kept the
settlement funds as his own until the Fetchkos hired a second
lawyer, Attorney Dean Berg, to investigate the status of the
litigation. Once [A]ppellant’s deception was uncovered,
[A]ppellant, on January 29, 2016, delivered a cashier’s check in
the amount of $330,371.45 to Attorney Berg’s office. [A]ppellant,
having no shame, decided to keep $170,343.00 for his fee.[FN3]
At the time of sentencing, that sum was ordered to be paid to the
Fetchkos as restitution.
[FN3][A]ppellant had no fee agreement with the Fetchkos,
and [Appellant] misled [the Fetchkos] regarding his fee for
representing their son’s estate.
Id. at 1-2 (some formatting altered).
On February 16, 2022, a jury found Appellant guilty of two counts of
theft by deception, which were each graded as first-degree felonies. Verdict
Slip, 2/16/22; Order, 3/29/22. On March 29, 2022, the trial court sentenced
Appellant to an aggregate term of twenty-four to sixty months of incarceration
in a state correctional institution. Order, 3/29/22; N.T. Sentencing, 3/29/22,
at 74; 164-165.
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Following sentencing, Appellant’s private counsel, Gavin Holihan, Esq.,
was permitted to withdraw without objection from Appellant, and Appellant
filed a timely pro se notice of appeal. On April 22, 2022, the trial court directed
Appellant to file a concise statement of errors complained of on appeal
pursuant to Pa.R.A.P. 1925(b), and Appellant filed a timely pro se Rule
1925(b) statement.
On June 9, 2022, Appellant filed a petition seeking court-appointed
counsel, and on June 27, 2022, the trial court conducted a Grazier2 hearing.
Following the hearing, the trial court appointed Matthew Rapa, Esq., to
represent Appellant, and the trial court provided Appellant sixty days in which
to file a counseled supplemental Rule 1925(b) statement. Appellant filed a
timely supplemental Rule 1925(b) statement on August 26, 2022, and the trial
court filed its Rule 1925(a) opinion on September 19, 2022.
On appeal, Appellant raises the following issue:
Whether Appellant’s convictions of two counts of theft by
deception were barred by the statute of limitations when all
elements of the crime were completed in January 2011, but
criminal proceedings were not initiated until eight years later on
April 10, 2019?
Appellant’s Brief at 4 (formatting altered).
Appellant contends that the crime of theft by deception is not a
continuing offense, and therefore, the elements of his theft-by-deception
charges were completed in January of 2011. Appellant’s Brief at 12-13. On
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2 Commonwealth v. Grazier, 713 A.2d 81 (Pa. 1998).
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this basis, Appellant asserts that the five-year statute of limitations expired in
January of 2016. Id. at 13. Appellant claims that because the Commonwealth
did not file charges until April 10, 2019, the prosecution was barred due to
the expiration of the statute of limitations. Id. at 17-19.
The Commonwealth responds that Appellant’s thefts by deception did
not end in January 2011, but rather that is when the crimes began.
Commonwealth’s Brief at 13-14. The Commonwealth contends that Appellant
held himself out as the Fetchkos’ lawyer and received the funds from Fetchkos’
settlement in 2011. The Commonwealth argues that Appellant’s thefts by
deception continued for the five-year period between January 2011 and
January 2016, while Appellant continued to withhold the Fetchkos’ settlement
funds through deception. Id. at 14. Specifically, the Commonwealth contends
that Appellant’s deception was exhibited through Appellant’s continued action
of withholding the Fetchkos’ money by creating and failing to correct the false
impression that Appellant had not yet received the settlement funds or that
he could not distribute the money to the Fetchkos due to intervention by the
IRS. Id. at 15-19. The Commonwealth asserts that Appellant’s crimes
continued until he finally delivered the funds to the Fetchkos in January of
2016. Id. at 19.
“A question regarding the application of the statute of limitations is a
question of law.” Commonwealth v. Succi, 173 A.3d 269, 279 (Pa. Super.
2017) (citation omitted). Accordingly, “our standard of review is de novo and
scope of review is plenary.” Id. (citation omitted). “Statutes of limitations
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are of course liberally construed in favor of the defendant and against the
Commonwealth.” Id. (citation omitted).
As stated, Appellant was convicted of two counts of theft by deception
under 18 Pa.C.S. § 3922(a)(1). Theft by deception is subject to a five-year
statute of limitations. 42 Pa.C.S. § 5552(b)(1). “An offense is committed
either when every element occurs, or, if a legislative purpose to prohibit a
continuing course of conduct plainly appears, at the time when the course of
conduct or the complicity of the defendant therein is terminated.” 42 Pa.C.S.
§ 5552(d). The elements of theft by deception are as follows:
A person is guilty of theft if he intentionally obtains or withholds
property of another by deception. 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; but deception as to a person’s intention to perform a
promise shall not be inferred from the fact alone that he did
not subsequently perform the promise[.]
18 Pa.C.S. § 3922(a)(1).
This Court has held that where a defendant fails to correct his victim’s
false impression with respect to theft by deception, “the statute of limitations
does not begin to run until the victims discovered the deception[.]”
Commonwealth v. Fisher, 682 A.2d 811, 818 (Pa. Super. 1996). The
Fisher Court further stated: “[t]he relevant conduct . . . is analogous to that
which constitutes criminal conspiracy, which, for purposes of the statute of
limitations, can be a continuing offense.” Id. (citation omitted). Accordingly,
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the Fisher Court concluded “that the prosecution on each count must
commence within five years from the date of [the defendant’s] last deception
relating to that count.” Id.As stated, Appellant asserts that his crimes were complete as of January
of 2011. Appellant’s Brief at 12-13. Further, Appellant claims that pursuant
to the holding in Succi, theft by deception is not a continuing offense, and
Section 5552(d) does not apply to extend the statute of limitations. See id.We conclude that Appellant’s argument lacks merit and that no relief is due.
Initially, we note that the facts in Succi were substantially different from
the instant case. In Succi, the defendant was convicted of twelve separate
counts of theft by deception from separate victims, and these thefts occurred
between June of 2005 and February 10, 2014, when a warrant was issued for
Mr. Succi’s arrest. Succi, 173 A.3d at 272-279. Mr. Succi asserted that any
thefts which occurred more than five years prior to February 10, 2014, when
the warrant was issued, were barred by the five-year statute of limitations.
Id. at 279-282. However, the trial court concluded that Mr. Succi engaged in
a single continuing course of conduct under Section 5552(d) and that the
statute of limitations had not expired on any of the crimes. Id. at 279-280.
The trial court “found that the evidence established that [Mr. Succi] engaged
in deceptive or fraudulent business practices and theft by deception
throughout 2005, 2006, 2007, 2008, 2009, 2010, 2011, 2012, and 2013 and
continued into 2014.” Id. at 280 (citation omitted and formatting altered).
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On appeal to this Court, Mr. Succi argued that his crimes were
“intermittent, did not constitute a single, continuous act, and failed to show a
repetitive pattern of behavior.” Id. The Succi Court, applying Fisher,
concluded that the continuing-conduct language from Section 5552(d) could
not extend the statute of limitations under the facts of that case where there
were multiple separate counts of theft and numerous victims over a period of
nine years. Id. The Succi Court concluded that the statute of limitations
could not be extended under Section 5552(d) to tack each of Mr. Succi’s
separate instances of theft from multiple victims together into a continuous
criminal act from 2005 through 2014. See Succi, 173 A.3d at 280-81.
However, in the instant case, the only victims were the Fetchkos, and
there was one continuous course of conduct where Appellant used deception
to withhold funds that belonged to the Fetchkos. Pursuant to Fisher,
Appellant’s crimes were continuing offenses, and the statute of limitations did
not begin to run until the Fetchkos discovered the deception in January, 2016,
through the investigation of Attorney Berg. Fisher, 682 A.2d at 818.3 Indeed,
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3 Moreover, Appellant’s claim that the Succi Court ruled that theft by
deception is not a continuing offense would cause Succi to directly conflict
with the plain language of Fisher. We reiterate that the Fisher Court stated
that theft by deception can be a “continuing offense.” Fisher, 682 A.2d at
818. Further, Succi was a decision issued by a three-judge panel of this
Court, and it is well settled that a three-judge panel is bound by stare decisis
and cannot overrule prior decisions of this Court. See, e.g., Commonwealth
v. Crowley, 605 A.2d 1256, 1257 (Pa. Super. 1992) (stating “precedent
(stare decisis) requires [a three-judge panel of this Court] to adhere to a ruling
of this Court until it is reversed either by our Supreme Court or an en banc
panel of [the] Superior Court”). Accordingly, Succi cannot be construed in a
manner that conflicts with or overrules Fisher.
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Appellant engaged in deception to withhold money from the Fetchkos and
continued to deceive the Fetchkos for years. The record reflects that Appellant
received a total of $510,000.00 to settle the Fetchkos’ claims. N.T., 2/16/22,
at 15. Appellant received the $510,000.00 in separate checks dated January
17, 2011, and January 20, 2011, and Appellant cashed these checks. See id.
at 15-27. Appellant then proceeded to deceive the Fetchkos by creating the
false impression that he had either not received the funds or that he could not
distribute the funds to the Fetchkos due to intervention by the IRS. See N.T.,
2/15/22, at 16, 84, 91; see also Trial Ct. Op., 9/19/22, at 1-4. Appellant
then withheld the funds through deception until the Fetchkos retained
Attorney Berg in 2015. See N.T., 2/15/22, at 81-82. Attorney Berg first
contacted Appellant on July 31, 2015, in an effort to investigate and attempt
to collect the money that Appellant was withholding from the Fetchkos. See
id. at 82. Appellant’s deception, including the allegation that the IRS was
preventing disbursement of the Fetchkos’ money, began in 2012 and
continued through December 17, 2015, when Appellant corresponded by email
with Attorney Berg. See id. at 16, 84-87. On January 29, 2016, Appellant
delivered a cashier’s check in the amount of $330,371.45 to Attorney Berg’s
office. See id. at 20, 45, 107.
After review, we conclude that the elements of Appellant’s crimes began
in January of 2011, and continued through January 29, 2016, when Appellant
ceased deceiving the Fetchkos and stopped withholding their money. See
Fisher, 682 A.2d at 818 (holding that “the prosecution on each count must
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commence within five years of [the] last deception relating to that count.”).
It is undisputed that the Commonwealth charged Appellant on April 10, 2019.
See Complaint, 4/10/19. Therefore, the prosecution commenced thirty-eight
months after January 29, 2016, prior to the expiration of the five-year statute
of limitations.4 For these reasons, we conclude that Appellant is due no relief.
Accordingly, we affirm the judgment of sentence.
Judgment of sentence affirmed.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 2/14/2023
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4 In any event, even if we use July of 2015, the time at which the Fetchkos
retained Attorney Berg, as the date Appellant last deceived the Fetchkos, or
December 17, 2015, the date on which Appellant last emailed Attorney Berg
alleging that the IRS prevented disbursement of the funds, the prosecution
still commenced within five-years.
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