J-S48026-17

                                   2018 PA Super 22

    COMMONWEALTH OF PENNSYLVANIA               :   IN THE SUPERIOR COURT OF
                                               :        PENNSYLVANIA
                                               :
                v.                             :
                                               :
                                               :
    TODD FRANKLIN MCCARTHY                     :
                                               :
                       Appellant               :   No. 345 MDA 2017

            Appeal from the Judgment of Sentence October 21, 2016
                  In the Court of Common Pleas of York County
              Criminal Division at No(s): CP-67-CR-0002433-2015


BEFORE:      OTT, J., STABILE, J., and PLATT, J.

OPINION BY OTT, J.:                                  FILED FEBRUARY 06, 2018

        Todd Franklin McCarthy appeals from the judgment of sentence imposed

on October 21, 2016, in the Court of Common Pleas of York County, following

his jury convictions for theft by unlawful taking, access device fraud, and two

counts of forgery.1       The trial court sentenced McCarthy to, inter alia, an

aggregate term of 18 to 36 months’ imprisonment (with 383 days’ credit for

time served), followed by 10 years’ probation.2          In this appeal, McCarthy
____________________________________________


   Retired Senior Judge assigned to the Superior Court.

1  18 Pa.C.S. §§         3921(a), 4106(a)(1)(ii), and 4101(a)(2), and (3),
respectively.

2 The trial court sentenced McCarthy to 18 to 36 months in prison with 383
days’ credit for time served for his conviction for theft by unlawful taking. The
trial court imposed consecutive five-year sentences of probation for access
device fraud and forgery, respectively. On the second count of forgery, the
trial court imposed a concurrent sentence of five years’ probation. Finally, the
trial court ordered McCarthy to pay $90,000.00 in restitution to the estate of
his mother, the victim.
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challenges the trial court’s denial of his motion to dismiss, the trial court’s

evidentiary ruling that allowed evidence regarding the value and condition of

the victim’s home, and the discretionary aspects of the sentence. Based upon

the following, we affirm.

        The criminal charges against McCarthy arose from McCarthy’s actions of

having his elderly mother, Mary Ann Miller (the “victim”),3 sign blank checks

that he made payable to himself, and obtaining money through ATM

transactions using his mother’s debit card. At the relevant time, McCarthy

was his mother’s agent under her power of attorney (POA). McCarthy was

charged via a criminal complaint with the foregoing crimes on February 26,

2015. McCarthy was arrested on March 2, 2015, pursuant to a warrant issued

on February 27, 2015. On August 10, 2015, at McCarthy’s request, the trial

court continued the case to October 16, 2015. On October 14, 2015, again at

McCarthy’s request, the trial court continued the case to December 7, 2015.

On December 7, 2015, the parties agreed to list the case for the January 2016

term, which was to start on January 5, 2016, because the criminal court was

not in session between December 7, 2015, and January 5, 2016. McCarthy

was not tried in January 2016. The parties next appeared in court on July 25,

2016.4 On that date, the trial court continued the case to the September 2016

____________________________________________


3   Suffering from dementia, the victim passed away in March 2015.

4  In the interim, and unrelated to the disposition of this case, the
Commonwealth’s only activity on the docket involved its filing of a motion in
limine on June 14, 2016.

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term. In so doing, the trial court noted that “[g]iven the amount of time that

the parties anticipate is required to resolve this case to complete the trial and

the [c]ourt’s schedule, which only has available court time today and

tomorrow, we will continue this case and put it back on the September trial

term[.]” Trial Court Order, 7/25/16. On September 6, 2016, on the first day

of the September 2016 term, the trial court granted the Commonwealth’s

request to move McCarthy’s trial to the following week.

      On September 9, 2016, McCarthy filed a Pa.R.Crim.P. 600 motion,

seeking to dismiss with prejudice the charges filed against him. McCarthy

argued that the Commonwealth failed to bring him to trial within 365 days of

the filing of the criminal complaint.     The trial court held a jury trial on

September 12, 2016, which lasted two days. At the start of trial, the trial

court held a hearing on McCarthy’s Rule 600 motion. N.T. Trial, 9/12/16, at

4-5, 14-29.    Following the hearing, the trial court denied the motion.

McCarthy proceeded to trial, at which he objected, on the basis of relevance,

to the Commonwealth’s introduction of evidence relating to the value and

condition of the victim’s house while McCarthy was in charge of her care. The

Commonwealth argued that it should be permitted to introduce such evidence

for the following reasons:

      [T]he Commonwealth’s case is just to show that the, in terms of
      the house, that the—that after the, [the victim] in this case had
      moved out of the house and then ultimately became deceased,
      and [McCarthy] was the only one living there, that he did nothing
      except allow it to go to waste. He was not taking care of anything.
      He allowed the property to go to tax sale. He allowed it to fall into
      ruin. That at that point it was sold, it was sold for much less than
      the value, the assessed value of the house.

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           There are pictures, which I can hand up, showing the
     condition of the house.      And it just goes to the overall
     circumstances.   This is basically a circumstantial case, that
     [McCarthy] was wasting [the victim’s] assets for his own benefit
     and doing nothing to take care of them, and that that, in turn,
     affected not only [the victim], but the rest of the heirs of the
     property.

N.T. Trial, 9/12/16, at 33-34. The trial court overruled McCarthy’s objection.

At trial, the Commonwealth introduced the testimony of several witnesses,

which the trial court summarized as follows:

           During trial, Angie Walker[,] a social worker with Visiting
     Angels, testified that her agency provided personal care for [the
     victim], [McCarthy’s] elderly mother, in her home. Because [the
     victim] had been diagnosed with dementia, Walker regularly
     assessed her mental health status. Tests conducted in late 2012
     and early 2013, as well as visual observations, established that
     [the victim’s] mental status was deteriorating rapidly and she
     could no longer manage her financial affairs.

           In April 2013, Walker told [McCarthy] that [the victim] could
     no longer properly administer her medication. [McCarthy] was
     considering placing his mother in a residential facility. However,
     when he learned that the cost would not be covered by insurance,
     [McCarthy] decided against the private facility.

            Barbara Kelch, a Visiting Angels worker, cared for [the
     victim] beginning in 2011. [The victim’s] mental and physical
     health declined during this period. [McCarthy] lived in [the
     victim’s] residence beginning in 2013. Initially [Mccarthy] would
     ask [the victim] for her bankcard to pay for household necessities
     and return it to her. Later, however, [McCarthy] controlled [the
     victim’s] finances. [The victim] occasionally complained that
     “[h]e’s spending my money.” [McCarthy] frequently left [the
     victim] alone and took her car to travel to the White Rose Bar and
     Grill. [McCarthy] did not perform household tasks.

           Susan Heinle, president of Visiting Angels, testified that [the
     vicitm’s] daughter had had power of attorney and made regular
     payments to Visiting Angels.         When [McCarthy] assumed
     responsibility for [the victim’s] finances, the “payments were
     sporadic” and often weeks late. Visiting Angels “would have to
     send repetitive notices, and . . . threaten that we were going to
     put services on hold unless we received payment.” When Visiting
     Angels stopped services, the business “repeatedly tried to get
     payment for that final balance, without success.” In addition, real
     estate taxes on [the victim’s] residence were “delinquent.”


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            Megan Schrom, administrator at Rest Haven Nursing Home,
     testified that [the victim] began residing at the home in February
     2014. Although [McCarthy] had told staff members that “there
     were adequate funds, money was not an issue,” he failed to pay
     bills. Despite repeated attempts to communicate with [McCarthy],
     close to $60,000 in charges from Rest Haven remained unpaid.
     Eventually, Rest Haven executives took the unusual step of
     visiting [the victim’s] residence. However, [McCarthy] refused to
     answer the door. Schrom noticed that the exterior of the
     residence and surrounding area were “really disgusting” and
     “there were multiple notices on the door.” In addition, the
     physical condition of the residence was “dingy, dirty” and it
     “[l]ooked like it was going to fall down.” Prior to [McCarthy’s]
     residence, the home had been well-maintained.

            Despite receiving no payment, Rest Haven continued to care
     for [the victim] until she died in March 2015. Rest Haven officials
     contacted the Area Agency on Aging Protective Services with their
     concerns.

            Other than when [the victim] was first admitted to Rest
     Haven in February 2014, Schrom knew of no contact between
     [McCarthy] and [the victim] before her death more than a year
     later. Rest Haven could not reach [McCarthy] to fill out routine
     forms and [McCarthy] failed to attend meetings with staff to
     discuss [the victim’s] care.

            Sue Gordon, a protective service investigator with the Office
     on Aging, testified she became involved in [the victim’s] case
     because “[b]ack taxes hadn’t been paid on her home . . . there
     were unpaid bills to the nursing home, to in-home care services .
     . . and nobody was able to get ahold of [McCarthy].” Gordon
     identified documents that established [McCarthy] had power of
     attorney over his mother’s affairs. Under a power of attorney,
     “you are supposed to keep your funds separate from the client’s
     and manage those monies just in the best interest of the client.”
     As a fiduciary, [McCarthy] was required to “act in the client’s best
     interest” and use [the victim’s] funds for [the victim].
            In investigating the agency’s concerns, Gordon attempted
     to interview [the victim] but “she was extremely confused, was on
     total care, and was bed bound at that point.”

           [The victim’s] bank records showed numerous debit
     transactions at the White Rose as well as transactions for cash.
     Both direct and circumstantial evidence established that
     [McCarthy] conducted the transactions.

            A retired industrial engineer, [the victim] had income from
     social security, an investment account, a pension, a life insurance
     policy, and rental property. During the time [McCarthy] had
     power of attorney, substantial sums were transferred from these
     accounts and moved to an account accessible by a debit card. The
     investigation determined that in August 2014 alone, 93

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J-S48026-17


       withdrawals totaling more than $10,000 were made for purchases
       that were not for [the victim]. Conservatively, monies improperly
       taken from the [the victim’s] accounts and spent largely at the
       White Rose totaled more than $65,000 in nine months.

             In an interview with police, [McCarthy] admitted that checks
       written for [the victim’s] care were made out and signed by him
       as power of attorney; whereas he had [the victim] sign blank
       checks that he made payable to him. Checks he made payable to
       himself included a check for his new car. This occurred during the
       period when [the victim’s] dementia had progressed to the point
       that she did not know the month or day. During an 11-month
       period, [McCarthy] wrote checks totaling close to $25,000 that
       were made payable to him. During the next several months,
       [McCarthy] obtained money through ATM transactions using [the
       vicitm’s] debit card. Together, the value of the transactions was
       more than $90,000.
             An attorney for [the victim’s] estate testified that in addition
       to [McCarthy], [the victim] had five other beneficiaries. [The
       victim’s] residence, which had been assessed at $104,650, sold
       for $57,500.

              [McCarthy] testified that he believed his mother was “okay”
       with him using her funds for personal purchases. He said it was
       “basically procrastination” that caused him to fail to pay her bills.
       He “went off the deep end” when his mother went to the nursing
       home. He failed to visit his mother because he “felt that it was
       best if we kind of just left it go.” He was in a “deep depression .
       . . to the point where having that and my troubles with alcohol
       that I could only get up and go to the White Rose . . . .”

Trial Court Opinion, 4/5/17, at 6-12 (record citations omitted). The jury found

McCarthy guilty of theft by unlawful taking, access device fraud, and two

counts of forgery. On October 21, 2016, the trial court sentenced McCarthy

as stated above. Following the denial of McCarthy’s post-sentence motions

on January 27, 2017, this timely appeal was filed.5

       We restate the issues raised in McCarthy’s brief verbatim:

____________________________________________


5 McCarthy timely complied with the trial court’s order to file a Pa.R.A.P.
1925(b) statement of errors complained of on appeal.



                                           -6-
J-S48026-17


      Whether the Commonwealth violated Rule 600 where, under
      proper start- and end-dates and with accurate date-to-date
      calculations, it delayed a minimum of 367 days before bringing
      Todd McCarthy to trial, and also moved for a continuance instead
      of transferring the case to an available judge even after 367 days’
      delay.

      Whether the trial court erroneously allowed voluminous evidence
      on the condition and value of [the victim’s] house to show
      McCarthy was “wasting assets” where this was irrelevant and
      prejudicial in a very close case.

      Whether the trial court improperly penalized McCarthy for
      exercising his constitutional rights to take his case to trial and
      maintain his innocence where the court imposed an aggravated-
      range sentence after explicitly citing McCarthy’s failure to “take
      responsibility” despite counsel’s statement that he accepted the
      verdict and intended to make the estate whole.

McCarthy’s Brief at 4.

      Regarding McCarthy’s first issue, our standard of review for Rule 600

claims is an abuse of discretion. Commonwealth v. Watson, 140 A.3d 696,

697-698 (Pa. Super. 2016), appeal denied, 164 A.3d 480 (Pa. 2016). It is

well-settled:

      Judicial discretion requires action in conformity with law, upon
      facts and circumstances judicially before the court, after hearing
      and due consideration. An abuse of discretion is not merely an
      error of judgment, but if in reaching a conclusion the law is
      overridden or misapplied or the judgment exercised is manifestly
      unreasonable, or the result of partiality, prejudice, bias, or ill will,
      as shown by the evidence or the record, discretion is abused.

      The proper scope of review . . . is limited to the evidence on the
      record of the Rule 600 evidentiary hearing, and the findings of the
      trial court. An appellate court must view the facts in the light most
      favorable to the prevailing party.

      Additionally, when considering the trial court’s ruling, this Court is
      not permitted to ignore the dual purpose behind Rule 600. Rule
      600 serves two equally important functions: (1) the protection of
      the accused’s speedy trial rights, and (2) the protection of society.
      In determining whether an accused’s right to a speedy trial has
      been violated, consideration must be given to society’s right to
      effective prosecution of criminal cases, both to restrain those
      guilty of crime and to deter those contemplating it. However, the
      administrative mandate of Rule 600 was not designed to insulate

                                       -7-
J-S48026-17


     the criminally accused from good faith prosecution delayed
     through no fault of the Commonwealth.

     So long as there has been no misconduct on the part of the
     Commonwealth in an effort to evade the fundamental speedy trial
     rights of an accused, Rule 600 must be construed in a manner
     consistent with society’s right to punish and deter crime. In
     considering these matters . . ., courts must carefully factor into
     the ultimate equation not only the prerogatives of the individual
     accused, but the collective right of the community to vigorous law
     enforcement as well.

Watson, supra (citation omitted).

     Rule 600 provides in relevant part:

     (A) Commencement of Trial; Time for Trial

        (1) For the purpose of this rule, trial shall be deemed to
        commence on the date the trial judge calls the case to trial,
        or the defendant tenders a plea of guilty or nolo contendere.

        (2) Trial shall commence within the following time periods.

           (a) Trial in a court case in which a written complaint
           is filed against the defendant shall commence within
           365 days from the date on which the complaint is filed.

           ....

     (C) Computation of Time

        (1) For purposes of paragraph (A), periods of delay at any
        stage of the proceedings caused by the Commonwealth
        when the Commonwealth has failed to exercise due
        diligence shall be included in the computation of the time
        within which trial must commence. Any other periods of
        delay shall be excluded from the computation.

        ....

        (3)(a) When a judge or issuing authority grants or denies a
        continuance:

        (i) the issuing authority shall record the identity of the party
        requesting the continuance and the reasons for granting or
        denying the continuance; and

        (ii) the judge shall record the identity of the party requesting
        the continuance and the reasons for granting or denying the
        continuance. The judge also shall record to which party the
        period of delay caused by the continuance shall be

                                     -8-
J-S48026-17


          attributed, and whether the time will be included in or
          excluded from the computation of the time within which trial
          must commence in accordance with this rule.

Pa.R.Crim.P. 600.6

       “Rule 600 requires the Commonwealth to try a defendant within 365

days of the filing of the complaint.” Commonwealth v. Roles, 116 A.3d 122,

124 (Pa. Super. 2015), appeal denied, 128 A.3d 220 (Pa. 2015).

       For purposes of determining the time within which trial must be
       commenced pursuant to paragraph (A), paragraph (C)(1) makes
       it clear that any delay in the commencement of trial that is not
       attributable to the Commonwealth when the Commonwealth has
       exercised due diligence must be excluded from the computation
       of time. Thus, the inquiry for a judge in determining whether
       there is a violation of the time periods in paragraph (A) is whether
       the delay is caused solely by the Commonwealth when the
       Commonwealth has failed to exercise due diligence. If the delay
       occurred as the result of circumstances beyond the
       Commonwealth’s control and despite its due diligence, the time is
       excluded.     In determining whether the Commonwealth has
       exercised due diligence, the courts have explained that due
       diligence is fact-specific, to be determined case-by-case; it does
       not require perfect vigilance and punctilious care, but merely a
       showing the Commonwealth has put forth a reasonable effort.

       Delay in the time for trial that is attributable to the judiciary may
       be excluded from the computation of time. However, when the
       delay attributable to the court is so egregious that a constitutional
       right has been impaired, the court cannot be excused for
       postponing the defendant’s trial and the delay will not be
       excluded.

Pa.R.Crim.P. 600, cmt. (citations, quotation marks and brackets omitted).

“The Commonwealth has the burden of establishing by a preponderance of

the evidence that it exercised due diligence throughout the prosecution.”

Roles, 116 A.3d at 125.




____________________________________________


6 Effective July 1, 2013, our Supreme Court adopted a new Rule 600, which
reflected prevailing case law. See Pa.R.Crim.P. 600, cmt.

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      Before   we   address   the   merits    of    McCarthy’s   claim   that   the

Commonwealth failed to bring him to trial within 365 days from the filing of

the criminal complaint, we highlight certain points relevant to the Rule 600

computation. First, the criminal complaint was filed on February 26, 2015,

and, therefore, the mechanical run date for purposes of Rule 600 was 365

days after the complaint was filed, i.e., February 26, 2016.              Second,

McCarthy’s trial commenced on September 12, 2016, 199 days beyond the

mechanical run date. Therefore, to determine whether a Rule 600 violation

occurred here, we must determine only whether sufficient excludable time

existed.

      Upon review of the record, we agree with the trial court’s analysis of the

relevant periods of excludable time, but we find the trial court made incorrect

calculations. Therefore, we proceed to our own calculations.

      Under Rule 600, the start date for a prompt trial calculation is the date

on which the criminal complaint is filed.          See Pa.R.Crim.P. 600(A)(2)(a)

(requiring that a trial must commence “within 365 days from the date on which

the complaint is filed”). Here, using the date of the filing of the complaint as

the start date and the September 12, 2016 trial date as the end date for

purposes of Rule 600, we calculate 564 days from the filing of the complaint,

i.e., 199 days beyond the 365-day requirement of Rule 600.

      The trial court correctly determined, as did the parties, that the 148-day

period between August 10, 2015 and January 5, 2016 was excludable based

upon defense continuances.       See Trial Court Opinion, 4/5/2017, at 5;

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McCarthy’s Brief at 28-29; Commonwealth’s Brief at 17.        As a result, 148

excludable days subtracted from the 564 total days yields 416 days, or 51

days in excess of the 365-day requirement of Rule 600.

       The trial court also correctly determined that the 49-day period between

July 25, 2016, and the September 12, 2016 disposition of McCarthy’s Rule 600

motion, which coincided with the start of his trial, was excludable. We agree.

The delay occasioned between July 25, 2016 and September 12, 2016,

resulted from the unavailability of time on the trial court’s calendar.    See

Commonwealth v. Mills, 162 A.3d 323, 325 (Pa. 2017) (noting that “where

a trial-ready prosecutor must wait several months due to a court calendar,

the time should be treated as “delay” for which the Commonwealth is not

accountable”). Therefore, subtracting the 49 days between July 25, 2016,

and September 12, 2016, from the 416 days, brings us to 367 days, i.e., two

days by which the Commonwealth exceeded the 365-day requirement of Rule

600.

       In other words, from February 26, 2015, when the criminal complaint

was filed to August 10, 2015, when McCarthy requested his first continuance,

165 days elapsed. From January 5, 2016 to July 25, 2016, an additional 202

days elapsed. Consequently, the net elapsed time is 367 days, which exceeds

by two days the maximum 365 days permitted by Rule 600(A)(2)(a).

       Nevertheless, we conclude that no Rule 600 violation occurred because

the 365th day fell on a Saturday, and consequently and necessarily, Day 367

fell on a Monday. It is settled that “[w]henever the last day of any such period

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(of time referred to in a statute) shall fall on a Saturday or Sunday, or on any

day made a legal holiday by the laws of this Commonwealth or of the United

States, such day shall be omitted from the computation.” 1 Pa.C.S. § 1908.

See Pa.R.Crim.P. 600, cmt. (“When calculating the number of days set forth

herein, see the Statutory Construction Act, 1 Pa.C.S. § 1908.”)        See also

Commonwealth v. Sanford, 441 A.2d 1220, 1221-1222 (Pa. 1982)

(applying Section 1908 of the Statutory Construction Act to prompt trial

calculation).7    Accordingly, consistent with Section 1908 of the Statutory

Construction Act and Sanford, we conclude that the trial court did not abuse

its discretion in denying McCarthy’s Rule 600 motion.8 Therefore, McCarthy’s

first claim fails to warrant relief.

       McCarthy next claims the trial court abused its discretion in allowing the

Commonwealth to introduce evidence of waste by discussing the condition and

value of the victim’s house, while McCarthy was in charge of the victim’s care.

Specifically, McCarthy contests the trial court’s admission of evidence that,

through McCarthy’s action or inaction, the value and condition of the victim’s

house had diminished while McCarthy cared for the victim. McCarthy maintains

evidence of waste was not relevant to establish the underlying charges of theft

by unlawful taking, access device fraud, or forgery.

____________________________________________


7The Sanford Court applied Pa.R.Crim.P. 1100, the former version of Rule
600.
8 Although our reasoning differs from that of the trial court, we may affirm for
reasons other than those given by the trial court. See Commonwealth v.
Claffey, 83 A.3d 780, 790 n.5 (Pa. Super. 2013).

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      The Commonwealth counters that the trial court did not abuse its

discretion in this regard because the evidence of the value and condition of

the victim’s house is relevant to show McCarthy’s criminal intent with respect

to the crimes of theft of unlawful taking, access device fraud, and forgery.

The Commonwealth reasons that the value and condition of the victim’s house

establishes that McCarthy “was wasting [the victim’s] assets for his own

benefit and doing nothing to take care of them which in turn affected not only

[the victim], but also the heirs of her assets.” Commonwealth’s Brief at 20.

      In reviewing McCarthy’s argument, we are guided by the following legal

principles.

      [T]he admissibility of evidence . . . rests within the sound
      discretion of the trial court, and therefore, we “will reverse [the]
      trial court’s decision . . . only if the appellant sustains the ‘heavy
      burden’ to show that the trial court has abused its discretion.”

                                       ****

            It is not sufficient to persuade the appellate court that it might have
            reached a different conclusion[;] it is necessary to show an actual
            abuse of the discretionary power. An abuse of discretion will not be
            found based on a mere error of judgment, but rather exists where
            the court has reached a conclusion [that] overrides or misapplies the
            law, or where the judgment exercised is manifestly unreasonable, or
            the result of partiality, prejudice, bias or ill-will.

Commonwealth v. Christine, 125 A.3d 394, 398 (Pa. 2015) (citations

omitted).

      Relevance      is   the    threshold      for   admissibility   of   evidence.

Commonwealth v. Cook, 952 A.2d 594, 602 (Pa. 2008).                    “Evidence is

relevant if: (a) it has any tendency to make a fact more or less probable than



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it would be without the evidence; and (b) the fact is of consequence in

determining the action.” Pa.R.E. 401; Commonwealth v. Drumheller, 808

A.2d 893, 904 (Pa. 2002). “Evidence that is not relevant is not admissible.”

Pa.R.E. 402. In addition, “[t]he court may exclude relevant evidence if its

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;

see Commonwealth v. Kouma, 53 A.3d 760, 770 (Pa. Super. 2012) (stating

that even when evidence meets the relevance requirements, “such evidence

may still be excluded where its probative value is outweighed by the danger

of unfair prejudice.”).

      However, [e]vidence will not be prohibited merely because it is
      harmful to the defendant. [E]xclusion is limited to evidence so
      prejudicial that it would inflame the jury to make a decision based
      on something other than the legal propositions relevant to the
      case. . . . This Court has stated that it is not required to sanitize
      the trial to eliminate all unpleasant facts from the jury’s
      consideration where those facts are relevant to the issues at
      hand[.]

Kouma, 53 A.3d at 770 (citation omitted); see Pa.R.E. 403, cmt. (defining

“unfair prejudice” as “a tendency to suggest a decision on an improper basis

or to divert the jury’s attention away from its duty of weighing the evidence

impartially.”).

      At trial, the Commonwealth sought to introduce testimony and

photographs to show that after McCarthy’s mother was placed in a nursing

home, McCarthy was the only one living in her house, and he “allowed [the

house] to go to waste,” to the point that it sold for much less than its assessed

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J-S48026-17


value. N.T., 9/12–14/2016, at 33. McCarthy’s attorney objected, contending

“none of that is relevant to the case at hand,” and “[a]ny issues pertaining to

the house, the value of the house, the value of the estate … should be in

Orphan[s’] Court, should be civil matters.” N.T., 9/12-14/2016, at 31.

      The trial court overruled the objection, finding “[t]he photographs of the

house … go to support the Commonwealth’s circumstantial evidence that Mr.

McCarthy was wasting the assets of his mother’s house for his mother’s

purposes as well as for the other heirs’ purposes, so I think that goes to his

intent. We will rule they are admissible.” N.T., 9/12-14/2016, at 35. See

also id. at 260-261. In its opinion, the trial court reiterated:

      [McCarthy’s] defense, in part, was that his mother authorized him
      to spend her money and that he lacked criminal intent. See N.T.,
      296-305. Evidence that [McCarthy] failed to maintain the house
      was circumstantial evidence that tended to show [McCarthy’s]
      intent towards his mother and his mother’s assets.

Trial Court Opinion, 4/5/2017, at 23. We find no abuse of discretion.

      While, as trial counsel argued, McCarthy’s failure to properly discharge

his duties under the POA is a breach of fiduciary duty and is an orphans’ court

matter, we agree with the trial court that the evidence that McCarthy failed to

maintain the value and condition of his mother’s house was relevant and

admissible in his criminal trial.

      McCarthy was brought to trial on charges of theft by unlawful deception,

access device fraud and forgery (two counts).      Theft by unlawful taking is

defined as follows:    “A person is guilty of theft if he unlawfully takes, or


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exercises unlawful control over, movable property of another with the intent

to deprive him thereof.” 18 Pa.C.S. § 3921(a). A person commits the offense

of access device fraud if he: “uses an access device to obtain . . . property or

services with knowledge that . . . access device was issued to another person

who has not authorized its use.” 18 Pa.C.S. § 4106(a)(1)(ii). Lastly, forgery

is defined as follows:

      (a) . . . . A person is guilty of forgery if, with intent to defraud or
      injure anyone, or with knowledge that he is facilitating a fraud or
      injury to be perpetrated by anyone, the actor:

              ...

                  (2) makes, completes, executes, authenticates,
            issues or transfers any writing so that it purports to
            be the act of another who did not authorize that act,
            or to have been executed at a time or place or in a
            numbered sequence other than was in fact the case,
            or to be a copy of an original when no such original
            existed; or

                  (3) utters any writing which he knows to be
            forged in a manner specified in paragraphs . . . (2) of
            this subsection.

18 Pa.C.S. § 4101(a)(2), and (3). As these statutory definitions indicate, the

charges against McCarthy involve, inter alia, the deprivation or the taking of

property from another without authorization.

      With respect to the above crimes, the Commonwealth alleged McCarthy

used his mother’s debit card to pay his own expenses, amounting to more

than $65,000.00 and, without using the POA, had his mother sign blank

checks that he made payable to himself in various amounts, totaling almost




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$25,000.00.9 The challenged evidence that MCCarthy failed to maintain the

value and condition of the victim’s home is relevant to the issue of McCarthy’s

intent to deprive the victim of her property. The assessed value of the victim’s

house was $104,650.00, and, it sold for $57,500.00 after the victim’s death.

See N.T., 9/12-14/2016, at 261–262. These figures show McCarthy deprived

his mother of almost half the value of the house, making the full value of that

asset unavailable to her in the event she ran out of funds while at the nursing

home.

       Viewed    in   the   context    of      all   the   evidence   presented   by   the

Commonwealth, with primary focus on the evidence showing that it was

McCarthy’s failure to pay the victim’s nursing home bills that triggered the

investigation leading to these charges, McCarthy’s failure to maintain the

value and condition of the victim’s house is relevant for the light it sheds on

McCarthy’s intent in using the victim’s credit card and directing the victim to

sign blank checks he made payable to himself.10



____________________________________________


9 See Commonwealth Exhibits 53–64. Commonwealth Exhibit 54, a check
that was payable to Diamond Auto of York and signed by the victim, was for
a car that McCarthy bought for himself. See N.T., 9/12-14/2016, at 243.
10 The $47,150.00 loss in value of the victim’s home (the difference between

the assessed value of $104,650.00 and the $57,500.00 sale price), in
combination with the approximately $25,000.00 from the victim’s checks
McCarthy made payable to himself, and the $65,000.00 McCarthy spent using
the victim’s debit card, certainly goes to McCarthy’s intent to deprive the
victim of her property.




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J-S48026-17



        Furthermore, the evidence is not outweighed by a danger of unfair

prejudice. Pa.R.E. 403. The testimony and photographs conveyed to the jury

a house that was poorly kept and in poor condition – nothing more.11 Although

McCarthy asserts he was prejudiced by the evidence because it “inject[ed]

[the victim’s] other heirs into the case as additional victims, and show[ed]

McCarthy had let [the victim’s] house become ‘really disgusting,’” 12 we are

not persuaded this evidence rises to such level that would “tend[] to suggest

a decision on an improper basis or divert the jury’s attention.” Pa.R.E. 403,

cmt. The fact that this evidence was harmful to McCarthy does not provide a

valid basis for exclusion. See Kouma, supra, 53 A.3d at 770 (“[e]vidence

will not be prohibited because it is harmful to the defendant … This Court has

stated that it is not required to sanitize the trial to eliminate all unpleasant

facts from the jury’s consideration where those facts are relevant to the issues

at hand[.]”) (citation omitted). Therefore, we reject McCarthy’s claim that

this evidence was unfairly prejudicial, and conclude the jury was properly

permitted to look at and hear the evidence of waste and draw its own

inferences. Accordingly, based on the above discussion, McCarthy’s second

argument fails.

        McCarthy’s final issue is a challenge to the discretionary aspects of

sentencing. Specifically, McCarthy contends:
____________________________________________


11 The trial court did exclude one photograph of a bathtub with blood as
“unduly inflammatory.” N.T., 9/12-14/2016, at 31, 35.

12   McCarthy’s Brief at 40, citing N.T., 9/12-14/2016, at 172.

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      The trial court gave McCarthy a sentence in the aggravated range,
      after explicitly citing his failure to “take responsibility” as
      aggravation. The context of the hearing indicates the court thus
      penalized McCarthy for exercising his constitutional rights to take
      the case to trial and maintain his innocence.

McCarthy’s Brief at 51 (“Section 2119(f) Statement) (record citations

omitted).

      Our Court has explained:

      “Challenges to the discretionary aspects of sentencing do not
      entitle an appellant to review as of right.” Before we address such
      a challenge, we first determine:

            (1) whether the appeal is timely; (2) whether Appellant
            preserved his issue; (3) whether Appellant’s brief includes
            a concise statement of the reasons relied upon for
            allowance of appeal with respect to the discretionary
            aspects of sentence; and (4) whether the concise
            statement raises a substantial question that the sentence
            is appropriate under the sentencing code.

Commonwealth v. Rush, 162 A.3d 530, 543 (Pa. Super. 2017) (citations

omitted), appeal denied, ___ Pa. ___ (September 15, 2017).

      Here, McCarthy has complied with the procedural requirements for this

appeal by filing a timely post-sentence motion for reconsideration of sentence

and timely notice of appeal, and by including in his appellate brief a statement

of reasons relied upon for appeal pursuant to              Commonwealth v.

Tuladziecki, 522 A.2d 17 (Pa. 1987), and Pa.R.A.P. 2119(f). Furthermore,

McCarthy’s claim presents a substantial question. See Commonwealth v.

Bowen, 975 A.2d 1120, 1122 (Pa. Super. 2009) (defendant’s contention that




                                      - 19 -
J-S48026-17


his sentence “was based on an unconstitutional factor … raises a substantial

question for our review”). Therefore, we proceed to the merits.

      Our standard of review is well settled:

      Sentencing is a matter vested in the sound discretion of the
      sentencing judge, and a sentence will not be disturbed on appeal
      absent a manifest abuse of discretion. In this context, an abuse
      of discretion is not shown merely by an error in judgment. Rather,
      the appellant must establish, by reference to the record, that the
      sentencing court ignored or misapplied the law, exercised its
      judgment for reasons of partiality, prejudice, bias or ill will, or
      arrived at a manifestly unreasonable decision.
Commonwealth v. Grays, 167 A.3d 793, 816 (Pa. Super. 2017) (citation

omitted).

      Furthermore, because McCarthy was sentenced within the aggravated

range of the sentencing guidelines, this Court may only vacate his sentence if

this “case involves circumstances where the application of the guidelines

would be clearly unreasonable[.]” 42 Pa.C.S. § 9781(c)(2).

      At sentencing, the trial court stated:

              … I do not take into consideration the fact that you went to
      trial in this matter. You have an absolute constitutional right to
      do that. I can’t and don’t hold that against you.

            I do, however, agree with [the Assistant District Attorney’s]
      statements that you have not accepted responsibility in this case,
      and I do consider that an aggravating factor.

N.T., 10/21/2016, at 17.    McCarthy argues that the trial court improperly

aggravated his sentence “because he exercised his right to trial and did not

concede guilt at sentencing.” McCarthy’s Brief at 53.



                                     - 20 -
J-S48026-17


      We find no merit in this argument as the trial court cited numerous

legitimate factors to justify its aggravated range sentence.        See Bowen,

supra, 975 A.2d at 1127–1128 (holding silence at sentencing may not form

the basis of finding that a defendant failed to take responsibility for his crimes,

and silence at sentencing may not be the sole basis for finding that a

defendant lacked remorse; however, remand for resentencing was not

necessary because trial court cited other aggravating factors).

      As the trial court explained in its opinion:

      The trial court acknowledged that [McCarthy’s] prior record score
      was zero.     What the trial court looked to, however, were
      [McCarthy’s] criminal convictions that were not included in the
      prior record score calculation. Specifically, in 2009, [McCarthy]
      was placed on the Accelerated Rehabilitative Disposition program
      for driving under the influence; in 2011, he was placed on
      probation following a conviction for recklessly endangering; and
      in 2013, he was sentenced to 90 days to six months for a second
      offense of driving under the influence. Moreover, in 2014 — after
      [McCarthy] committed the offenses that resulted in the
      convictions at issue — he was convicted of fleeing and eluding,
      driving under the influence, driving under suspension, accidents
      involving damage to unattended property, and driving without
      insurance.

            Thus, although [McCarthy’s] prior record score is zero, this
      designation does not adequately reflect a significant history of
      alcohol-related    offenses.   [McCarthy]      was    afforded   the
      rehabilitative resources of the criminal justice system but failed to
      correct his criminal conduct. Moreover, even after he committed
      the instant offenses and was under investigation, he remained
      undeterred and both drove while intoxicated and fled from police.

             [McCarthy] also contends that the trial court erroneously
      considered that [McCarthy] was neglecting Miller. The trial court
      did not find that [McCarthy] physically abused Miller. Rather, the
      trial court considered that the elderly victim was vulnerable and
      [McCarthy] took full advantage of her reduced mental and physical

                                      - 21 -
J-S48026-17


      state to unlawfully misappropriate the funds she had set aside for
      her retirement. This was at the expense of paying Rest Haven,
      Visiting Angels, and York Hospital for her care and also at the
      expense of performing routine maintenance of her residence, thus
      diminishing its resale value. Moreover, [McCarthy’s] apparent
      motive for what the trial court deemed to be callous treatment of
      his mother was to purchase and consume large quantities of
      alcohol.

             Finally, [McCarthy] contends that the trial court improperly
      found that “he had not properly treated his alcohol problems
      despite a lengthy period of sobriety and counsel’s explanation that
      he postponed treatment only due to the timing of the trial.” It was
      undisputed that [McCarthy] failed to follow through with the
      recommendations stemming from a Drug and Alcohol Evaluation.
      He attempted to justify this failure but the fact remained that
      [McCarthy]      could   have   complied     with   the    treatment
      recommendation and did not. The trial court properly considered
      this fact to bear on [McCarthy’s] rehabilitation, recidivism risk,
      and ability to conform his behavior to the requirements of the law.

             In summary, the trial court weighed a number of factors
      that it properly considered to be aggravating and placed on the
      record its reasons for imposing a sentence in the aggravated
      range.

Trial Court Opinion, 4/5/2017, at 24–27. Based on our review of the notes of

testimony of the sentencing hearing, we find no abuse of discretion. The trial

court’s sentence, which falls within the sentencing guidelines, is not “clearly

unreasonable.”   42 Pa.C.S. § 9781(c).          Accordingly, we reject McCarthy’s

discretionary aspects of sentencing claim.

      Judgment of sentence affirmed.

      Judge Platt joins the opinion.

      Judge Stabile files a concurring and dissenting opinion.




                                       - 22 -
J-S48026-17


Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 02/06/2018




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