J-S12005-19


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37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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