Com. v. Martella, C. ( 2019 )

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NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
COMMONWEALTH OF PENNSYLVANIA : IN THE SUPERIOR COURT OF
: PENNSYLVANIA
:
v. :
:
:
CHRISTOPHER JACKSON MARTELLA :
:
Appellant : No. 1588 MDA 2018
Appeal from the Judgment of Sentence Entered May 18, 2018
In the Court of Common Pleas of Berks County Criminal Division at
No(s): CP-06-CR-0002018-2017
BEFORE: BOWES, J., DUBOW, J., and MUSMANNO, J.
MEMORANDUM BY BOWES, J.: FILED MARCH 19, 2019
Christopher Jackson Martella appeals from the judgment of sentence of
six to twenty-three months of imprisonment, followed by four years of
probation, after a jury convicted him of theft by deception. We affirm.
The trial court offered the following summary of the facts presented
during Appellant’s trial.
On February 18, 2017, Mark Haas contacted [Appellant]
regarding a Facebook advertisement. The advertisement was to
sell a 2007 Ford F-250 4x4. The original advertisement was
requesting $15,500. After several messages back and forth, [Mr.]
Haas agreed to buy the vehicle for $15,000. A purchase
agreement was drawn up for purchase of the truck “as is.” The
agreement was never signed by either party but both parties
reviewed the agreement and through messages, an agreement to
sell the car per the purchase agreement was made. On February
20, [Appellant] informed Mr. Haas that there were mechanical
problems with the truck. Mr. Haas and [Appellant] continued to
talk about the mechanical issues regarding the truck and, at the
end of the conversation, Mr. Haas agreed to go through with the
sale. [Appellant] informed Mr. Haas that the repairs would be
made by February 23. A new price of $14,250 was agreed upon
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by both parties. On February 22, immediately after the new price
was agreed upon, Mr. Haas went to the bank and wired the funds
via bank transfer to [Appellant’s] account. [Appellant] informed
Mr. Haas in a message that he had received the funds.
There were various messages sent and received between
Mr. Haas and [Appellant] between February 22 and March 4,
2017[,] but no date was set up for Mr. Haas to receive the truck.
On March 5, [Appellant] messaged Mr. Haas saying that he will be
sending the money back in two days. He did not send the money
on March 7, but he responded to Mr. Haas’s message on March 8
saying that he would call him back to see if he could wire the
money back to Mr. Haas. However, he later informed Mr. Haas
that the wire transfer would happen on March 10. The money was
never transferred. On March 30, [Appellant] informed Mr. Haas
that he could pick up the truck in April. Around this time, Mr. Haas
had learned that the truck was not a 4x4 but was actually a 2x4
that had been converted to 4 wheel drive. The original
advertisement had also misrepresented the model of the truck.
Mr. Haas told [Appellant] that he wanted his money back and that
he no longer wanted the truck. Communication stopped between
the two parties on March 31. No money was returned to Mr.
Haas.
Trial Court Opinion, 11/27/18, at 2-3.
A jury convicted Appellant on March 13, 2018, and Appellant was
sentenced as indicated above on May 18, 2018. Appellant filed a timely post-
sentence motion, which the trial court denied on August 27, 2018. Appellant
filed a timely notice of appeal, and both he and the trial court complied with
Pa.R.A.P. 1925.
Appellant presents the following questions for our review.
A. Whether the guilty verdict . . . was in error as the evidence
presented at trial was insufficient to prove beyond a
reasonable doubt that Appellant had the requisite intent to
deceive where the alleged victim contacted Appellant in
response to a Facebook group listing for the sale of the vehicle,
Appellant gave his correct phone number, address, email
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address; where the truck was to be sold “as is” and there was
a misunderstanding between the parties as to whether the
truck was a 4x4, and the alleged victim refused the vehicle
after Appellant attempted to remedy the situation after being
contacted by the police?
B. Whether the guilty verdict . . . was in error and against the
weight of the evidence where the evidence showed that the
interaction between Appellant and the alleged victim was a
contractual dispute rather than a criminal matter. Specifically,
Appellant had numerous contacts with the alleged victim to
resolve the issue, there was a mistake as to whether the truck
was a 4x4, and Appellant again offered the truck to the alleged
victim who refused to take it?
Appellant’s brief at 5.
We first consider the standard applicable to our review of Appellant’s
sufficiency challenge.
Because a determination of evidentiary sufficiency presents a
question of law, our standard of review is de novo and our scope
of review is plenary. In reviewing the sufficiency of the evidence,
we must determine whether the evidence admitted at trial and all
reasonable inferences drawn therefrom, viewed in the light most
favorable to the Commonwealth as verdict winner, were sufficient
to prove every element of the offense beyond a reasonable doubt.
[T]he facts and circumstances established by the Commonwealth
need not preclude every possibility of innocence. It is within the
province of the fact-finder to determine the weight to be accorded
to each witness’s testimony and to believe all, part, or none of the
evidence. The Commonwealth may sustain its burden of proving
every element of the crime by means of wholly circumstantial
evidence. Moreover, as an appellate court, we may not re-weigh
the evidence and substitute our judgment for that of the fact-
finder.
Commonwealth v. Williams, 176 A.3d 298, 305-06 (Pa.Super. 2017)
(citations and quotation marks omitted).
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Appellant was convicted of theft by deception which is defined as
follows, in relevant part.
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). Hence, because mere failure to perform a promise
cannot alone support a finding of intent to deceive, the Commonwealth’s
evidence in this case must establish not only that Appellant wrongfully took
or kept Mr. Haas’s property, but that Appellant intended to do so from the
start. See, e.g., Commonwealth v. Grife, 664 A.2d 116, 120 (Pa.Super.
1995).
In arguing that the Commonwealth did not meet its burden, Appellant
relies upon two cases involving breached contracts in which this Court held
the evidence was insufficient to prove intent. In Commonwealth v. Bruce,
607 A.2d 294 (Pa.Super. 1992), Bruce was a broker who bought lumber from
sawmills and found buyers for it. Bruce approached Ongley, a sawmill owner,
and informed Ongley that Bruce had purchase orders from reputable
customers. The parties established an ongoing business relationship. Bruce
was often delinquent in making payments, claiming that he had to wait to
receive payment from the buyers before he could pay Ongley, and he once
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submitted a check that was returned for insufficient funds. After more than
one year of this, when Ongley was ultimately unable to recover approximately
$47,000 he was owed, despite the parties’ lawyers engaging in attempts to
resolve the matter, he filed a private criminal complaint. At trial, the
Commonwealth produced evidence that Bruce actually had received payments
from buyers at the time he told Ongley that the payments were outstanding,
and that Bruce often promised to pay Ongley more money than Bruce had
received for the lumber. Bruce testified that he intended to pay Ongley, but
cited excuses for his failure to do so, such as the bankruptcy of a client. Bruce
was convicted of theft by deception and appealed. This Court reversed,
holding that, although the evidence showed that Bruce was a lousy
businessman and lied about receipt of payments, there was “no evidence that,
at the time of the transaction, appellant did not intend to pay for the lumber.”
Id. at 297. Rather than establishing theft by deception, the Court stated that
the case was “nothing more than a failed business relationship and [was]
properly the subject of a civil suit, not criminal action.” Id.Similarly, in Commonwealth v. Wilkes, 676 A.2d 266 (Pa.Super.
1996) (en banc), Wilkes was the operator of an automobile products
import/export company. In order to fulfill an overseas order for motor oil, he
contracted with a Luzerne County parts store for 1200 cases of motor oil “from
new stock with the current National Football League advertising program.”
Id. at 268. Wilkes drove to the store to retrieve the oil, but discovered that
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it included an expired promotion rather than the current one requested.
Although the matter was not addressed to Wilkes’s satisfaction because the
store’s general manager was unavailable at the time, Wilkes accepted the oil
and issued a check for the full contract price. Wilkes subsequently attempted
to negotiate a price reduction with the manager, contending that the expired-
promotion oil had substantially less value, but they could not reach an
agreement. Wilkes stopped payment on the check, although there were
sufficient funds in the account to cover it, and the manager contacted the
authorities. Wilkes was convicted of theft by deception and filed an appeal.
This Court, relying on Bruce, held that the evidence showed “nothing more
than a business transaction which went awry,” not that Wilkes never intended
to pay for the actual value of the oil he received. Id. at 270. Specifically, the
Court noted that Wilkes had the necessary funds to pay the contract price,
and that he never attempted to conceal his identity or location. Id.Accordingly, we reversed.
We disagree with Appellant’s contention that the instant case is also just
“an ordinary contractual dispute,” Appellant’s brief at 24, as our review of the
record reveals sufficient evidence of deceptive intent. The Commonwealth
showed that Appellant offered to sell a vehicle for which he did not have title.
N.T. Trial, 3/13/18, at 75. In his advertisement, Appellant represented the
2007 F-250 2x4 XL 10 for sale to be a 2007 F-250 4x4 Lariat. Id. at
Commonwealth Exhibit 1. Although the truck had been converted to a 4x4,
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this fact, which decreased the value substantially, was not disclosed, even
when Mr. Haas presented a written agreement identifying the vehicle by a
vehicle identification number (“VIN”) indicating that Mr. Haas was purchasing
a factory 4x4. Id. at 77. Further, while the truck had Lariat seating, it did
not have all of the upgrades of the Lariat model. Id. at 78. Mr. Haas wired
money for the truck to Appellant on February 22, 2017. Appellant still did not
have the title to the truck when he accepted the money. Id. at 75.
Although the parties had been in regular contact prior to that date,
Appellant’s responsiveness began to wane immediately thereafter. Appellant
did not take a call from Mr. Haas, but texted on February 26th to say that he
would call Mr. Haas back in the morning. Id. at Commonwealth’s Exhibit 4.
Appellant did not call, but texted that night to say he had a “crazy day” and
would call the next day. Id. He did not call the next day, citing traffic as an
excuse. Id. There were then more “crazy days,” and Appellant promised to
call the evening of March 2nd. Appellant did not call. Nor did he acknowledge
messages sent by Mr. Haas the next two days. On March 5th, Appellant
informed Mr. Haas that Appellant’s phone had broken and that his mother was
ill, and he would be sending Mr. Haas’s money back in two days, on a Tuesday.
Id. at Commonwealth Exhibit 5. Appellant did not send the money, again
invoking his mother’s illness, but said he would send it by Friday at the latest.
Id. Appellant did not send the money on Friday, March 10th. He made no
contact with Mr. Haas between then and March 30th, when, after the police
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had contacted Appellant on March 28th, Appellant sent Mr. Haas a message
informing him that he could pick the truck up in April. Id.
Hence, the verdict is supported not merely by the fact that Appellant did
not perform his promise, but by additional evidence that gives rise to the
reasonable inference that Appellant obtained Mr. Haas’s money by creating a
false impression as to the value of the truck and then immediately beginning
stall tactics to avoid producing the truck or returning the money. Accord
Commonwealth v. Fisher, 682 A.2d 811, 813-14 (Pa.Super. 1996) (holding
evidence of intent sufficient where defendant convinced victims to trust him,
misrepresented the condition of the property he sold to victims, and
repeatedly failed to return money when requested); Grife, supra at 120(holding mens rea for theft by deception was sufficiently proven where falsified
records evidenced the defendant’s “purposeful intent to give his lenders less
than what they bargained for in order to procure their property”).
Appellant attempts to argue away this evidence by pointing to other
evidence that could support a finding that no intent to deprive Mr. Haas of his
money was present. For example, he highlights that he gave Mr. Hass
accurate identification and contact information, that he sua sponte disclosed
to Mr. Haas mechanical problems that he discovered prior to receiving
payment, and that Appellant appeared at the police station on a date selected
by Mr. Haas to deliver the truck or return the money, but Mr. Haas failed to
appear. Appellant’s brief at 22-23.
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Appellant essentially asks this Court to hold that the evidence favorable
to Appellant is entitled to greater weight than the evidence of his guilt. That
is not our role in reviewing a sufficiency-of-the-evidence claim. See
Williams, supra at 306 (“It is within the province of the fact-finder to
determine the weight to be accorded to each witness’s testimony and . . . as
an appellate court, we may not re-weigh the evidence and substitute our
judgment for that of the fact-finder.”). Further, the Commonwealth’s
evidence need not preclude every possibility of innocence. Id. Therefore,
Appellant’s first issue merits no relief.
With his remaining issue, Appellant contends that the verdict was
against the weight of the evidence. The following principles apply to our
review of that claim.
Appellate review of a weight claim is a review of the [trial court’s]
exercise of discretion, not of the underlying question of whether
the verdict is against the weight of the evidence. Because the trial
judge has had the opportunity to hear and see the evidence
presented, an appellate court will give the gravest consideration
to the findings and reasons advanced by the trial judge when
reviewing a trial court’s determination that the verdict is against
the weight of the evidence. One of the least assailable reasons
for granting or denying a new trial is the lower court’s conviction
that the verdict was or was not against the weight of the evidence
and that a new trial should be granted in the interest of justice.
Commonwealth v. Clay, 64 A.3d 1049, 1054-55 (Pa. 2013).
Appellant argues that the jury apparently disregarded the evidence in
his favor in reaching its verdict, namely that he provided his real name and
contact information, that he volunteered to Mr. Haas the mechanical problems
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with the truck although Mr. Haas had agreed to buy it “as is,” and that
Appellant had indicated his willingness to deliver the truck or return the
money. Appellant’s brief at 27-29. Appellant contends that these facts are
“quite clearly not indicative of one who is attempting to swindle or deceive
someone into purchasing an inferior truck,” and that “the jury’s failure to give
them adequate consideration ‘shocks the conscience.’” Id. at 28, 30.
The trial court disagreed, concluding that there was ample evidence to
establish that Appellant “had never intended or may not even have been able
to give the truck to Mr. Haas.” Trial Court Opinion, 11/27/19, at 8. From its
review, the trial court found no reason to disturb the jury’s weighing of the
evidence. Id.
Our review of the testimony and exhibits offered at trial reveals no
indication that the trial court’s determination that the verdict did not shock its
conscience was the product of an error of law, was manifestly unreasonable,
or was “a result of partiality, prejudice, bias or ill-will.” Clay, supra at 1055
(internal quotation marks omitted). Accordingly, Appellant is entitled to no
relief from this Court on his weight-of-the-evidence claim.
Judgment of sentence affirmed.
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Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 03/19/2019
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