J-A05018-20


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

    COMMONWEALTH OF PENNSYLVANIA               :   IN THE SUPERIOR COURT OF
                                               :        PENNSYLVANIA
                                               :
                v.                             :
                                               :
                                               :
    JOSEPH G. DAHL                             :
                                               :
                       Appellant               :   No. 643 WDA 2019

         Appeal from the Judgment of Sentence Entered March 11, 2019
     In the Court of Common Pleas of Allegheny County Criminal Division at
                       No(s): CP-02-CR-0009114-2017


BEFORE:      BENDER, P.J.E., BOWES, J., and PELLEGRINI, J.*

MEMORANDUM BY BOWES, J.:                                FILED MARCH 09, 2020

        Joseph G. Dahl appeals from the judgment of sentence of two years of

probation imposed after a jury convicted him of home improvement fraud.

We affirm.

        The trial court aptly summarized the factual history as follows:

              At trial, Jean Lombardi testified that on March 2, 2017, she
        and Appellant entered into a contract wherein she would pay him
        $26,500 to repair her deck, steps, a patio and a sidewalk around
        her house. She paid him $2650 as a deposit, and he gave her a
        receipt. Lombardi testified that Appellant promised to start the
        project at the end of March or beginning of April. On May 7, 2017,
        she gave Appellant a check for $14,000 which Appellant told her
        was for materials. She testified that she called him numerous
        times in May and Appellant would either apologize for the delay or
        not return her call. Ultimately, she received a certified letter from
        Appellant returning blueprints she had provided to Appellant. She
        continued to call him through June 2017 without successfully


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*   Retired Senior Judge assigned to the Superior Court.
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      reaching him. On July 8, 2017, she sent him a certified letter
      asking for the return of her money.

             In addition, Scott Chermak, the O’Hara Township zoning
      office, testified that Appellant applied for a building permit on April
      7, 2017. Chermak testified that additional documents were
      required, which Appellant submitted, and the permit was issued
      on May 5, 2017. The permit was admitted into evidence. A note
      on the permit indicates that the secretary called Appellant on May
      8, 2017 and again on June 5, 2017 to pick up the permit.
      Appellant never picked up the permit.

            Appellant also testified at trial. He stated that he contracted
      with Lombardi on a large decking project that he anticipated would
      take two months to complete. He completed an eight page
      residential permit application in furtherance of the project.
      Appellant indicated that his start date was delayed by rainy
      weather and personal circumstances including a flood in his house.
      He said that he did not recall receiving frequent phone calls from
      Lombardi. He did not recall sending a certified letter to Lombardi
      or ever getting pressed for time by her. He stated that he received
      a certified letter on July 15, 2017 demanding the return of
      Lombardi’s money.

Trial Court Opinion, 6/24/19, at 4-5 (citations to the record omitted).

      Appellant was charged with home improvement fraud-receives advance

payment for services and fails to perform. He proceeded to a jury trial where

he was convicted of the aforementioned charge.             On March 11, 2019,

Appellant was sentenced to two years of probation, and his timely post-

sentence motion was denied.

      Appellant filed a timely notice of appeal and court-ordered Pa.R.A.P.

1925(b) concise statement of errors complained of on appeal. The trial court

thereafter authored its Pa.R.A.P. 1925(a) opinion.        Appellant presents the

following issues for our review:




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      1.    Whether the evidence at trial was insufficient to prove that
            Appellant committed the offense of [h]ome [i]mprovement
            [f]raud where the Commonwealth failed to prove, beyond a
            reasonable doubt, each element of the offense.

      2.    Whether the trial court abused its discretion when it refused
            to grant a continuance prior to trial where ongoing
            negotiations to a pre-trial resolution were still ongoing and
            said continuance was in the interest of justice.

      3.    Whether the trial court abused its discretion when it refused
            to admit testimony from Appellant and another witness, at
            trial, regarding plea negotiations between Appellant and the
            Commonwealth.

      4.    Whether the verdict at the convicting Appellant of [h]ome
            [i]mprovement [f]raud was so contrary to the weight of the
            evidence as to shock one’s sense of justice because the
            Commonwealth failed to show that Appellant failed to act
            with the requisite mens rea.

Appellant’s brief at 8-9.

      Appellant’s first claim challenges the sufficiency of the evidence to

support his home improvement fraud conviction. Our standard of review when

considering a challenge to the sufficiency of the evidence is:

      [w]hether viewing all the evidence admitted at trial in the light
      most favorable to the verdict winner, there is sufficient evidence
      to enable the fact-finder to find every element of the crime beyond
      a reasonable doubt. In applying the above test, we may not weigh
      the evidence and substitute our judgment for the fact-finder. In
      addition, we note that the facts and circumstances established by
      the Commonwealth need not preclude every possibility of
      innocence. Any doubts regarding a defendant’s guilt may be
      resolved by the fact-finder unless the evidence is so weak and
      inconclusive that as a matter of law no probability of fact may be
      drawn from the combined circumstances. The Commonwealth
      may sustain its burden of proving every element of the crime
      beyond a reasonable doubt by means of wholly circumstantial
      evidence. Moreover, in applying the above test, the entire record
      must be evaluated and all evidence actually received must be

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       considered. Finally, the finder of fact while passing upon the
       credibility of witnesses and the weight of the evidence produced,
       is free to believe all, part or none of the evidence.

Commonwealth v. Gause, 164 A.3d 532, 540-41 (Pa.Super. 2017)

(citations and quotation marks omitted).

       The Pennsylvania Crimes Code defines home improvement fraud-

receives advance payment for services and fails to perform as follows:

       (a) Offense defined.--A person commits the offense of home
       improvement fraud 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) receives any advance payment for performing home
         improvement services or providing home improvement
         materials and fails to perform or provide such services or
         materials when specified in the contract taking into account
         any force majeure or unforeseen labor strike that would
         extend the time frame or unless extended by agreement with
         the owner and fails to return the payment received for such
         services or materials which were not provided by that date

73 Pa.C.S. § 517.8(a)(2).

       Appellant argues that, because the Commonwealth failed to prove that

a specified start date for the project was contained within the written contract,

the evidence was insufficient to sustain his conviction for home improvement

fraud.1 Appellant’s brief at 22-23. The Commonwealth counters that the start

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1Appellant also argues that the Commonwealth failed to prove that a written
contract existed, as opposed to a written proposal. Appellant’s brief at 23.
However, since Appellant did not preserve this issue below, it is waived. Even



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date was discussed orally and this was a matter of factual dispute testified to

by both the victim and Appellant at trial. Commonwealth’s brief at 15. The

jury credited the victim’s testimony that multiple start dates were set, and

each time Appellant failed to appear. Id. at 15-16.2 Accordingly, the trial

court ruled that the Commonwealth presented enough evidence to support its

conviction for home improvement fraud. We agree.

       The testimony at trial established that Appellant and the victim entered

into an agreement, whereby Appellant would build a deck, steps, patio, and

sidewalk for $26,650.00. The parties signed an agreement to this effect and

the victim provided Appellant with a ten percent down payment. The victim

testified that Appellant orally promised to start work first in late March or early

April, then in early May or late May, and finally in early June. N.T. Jury Trial,

64, 67-68, 71, 110.       Each time Appellant failed to appear.    Notably, after

Appellant failed to start work, or even retrieve the necessary building permit

prior to the first agreed-upon start date, Appellant demanded and accepted

$14,000 in additional funds from the victim. Id. at 43, 65. Finally, although


____________________________________________


if it was not waived, Appellant would not be entitled to any relief, since he
conceded the existence of a contract when he testified at trial. N.T. Jury Trial,
10/16/18, at 128.
2 Appellant also contends that because there was no explicit starting date in

the written contract the evidence was insufficient. He also argues that the
evidence was insufficient because the victim acquiesced to all of Appellant’s
extension requests. Appellant cannot have it both ways. By alleging that the
victim acquiesced to his extension requests, Appellant necessarily concedes
that there were multiple agreed-upon start dates to postpone. We find
Appellant’s contradictory argument disingenuous and unconvincing.

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Appellant returned the blueprints for the project, he never returned the

victim’s money.   Id. at 72.   Thus, viewing the evidence in the light most

favorable to the Commonwealth, as we must, we conclude that it was

sufficient to permit the jury to find that Appellant committed home

improvement fraud.

      Second, Appellant contends that the trial court abused its discretion

when it refused to grant his fourth request for a continuance prior to trial.

Appellant’s brief at 24. Appellant explains that he needed the continuance in

order to continue negotiations with the Commonwealth. Appellant’s brief at

24.

      It is well-settled that the decision to grant or deny a continuance rests

within the sound discretion of the trial court and will not be reversed absent a

clear abuse of discretion. Commonwealth v. Broitman, 217 A.3d 297, 299

(Pa.Super. 2019). Notably, “[a] bald allegation of an insufficient amount of

time to prepare will not provide a basis for reversal of the denial of a

continuance motion.” Commonwealth v. Ross, 57 A.3d 85, 91 (Pa.Super.

2012).

      Before trial commenced, the court placed on the record the relevant

procedural background and its reasons for denying Appellant’s requested

continuance.

            This case was scheduled for trial on January 10, 2018. That
      was the first postponement. [Appellant] was going to represent
      himself on felony charges. I asked him if he wanted to speak to
      an attorney and that he had a right to Counsel to do that.

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             He then spoke with an attorney, Mr. Joe, who was in the
       room, and requested for Counsel which he then did. A couple of
       days later, my notes indicate January 16th, Mr. McCune entered
       his appearance. We then had a postponement request from Mr.
       McCune on March 5th because [Appellant] wished to have some
       time to obtain the money needed for a 586 resolution.3 That was
       March 5th.

              Then we had a third defense postponement. Again, in good
       faith, I granted that postponement on the basis that [Appellant]
       had the money for a 586 but wished to have additional time for
       the District Attorney to review it and consider waiving court costs.
       And I did tell him at that time that it would be the last
       postponement.

              So at that time he represented that he had all the money
       collected and with him for a 586 resolution. And then last week
       Mr. McCune came in wanting another postponement because he
       and his client wished to -- they made a counteroffer to the
       amount.

             They did get an agreement from the District Attorney's
       Office to waive costs, and they indicated that they wanted to
       negotiate the actual amount. At that time I said, no, I would not
       grant one more defense postponement. It had already been
       postponed three times.

N.T. Jury Trial, 10/15/18, at 3-5. In its opinion, the trial court reiterated its

earlier findings that Appellant had been granted “a reasonable amount of time

within which to negotiate with the District Attorney’s Office.”      Trial Court

Opinion, 6/24/19, at 6-7. Additionally, the trial court found that Appellant had

not established prejudice because the record did not support a conclusion that

the restitution amount was up for further negotiation. Id.


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3Pa.R.Crim.P. 586 allows for the dismissal of criminal charges not committed
by force or violence upon payment of restitution.

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      Here, the trial court’s denial of the continuance was based upon its need

to swiftly administer justice.   Appellant had already been granted multiple

postponements, including one for nine months, to negotiate with the

Commonwealth. Further, he provided no evidence that negotiations were still

ongoing, and thus, failed to establish that he suffered prejudice when the

continuance was denied. In light of our deferential standard of review, we

conclude that the trial court did not abuse its discretion when it denied

Appellant’s request for a fourth continuance.

      In his third claim, Appellant argues that his constitutional right to cross-

examine an adverse witness was violated when the trial court sustained a

Commonwealth objection. Appellant’s brief at 27. Specifically, the trial court

barred Appellant from pursuing a line of questioning that would have revealed

to the jury that, during plea negotiations, Appellant offered to pay back the

money he owed the victim. Id. at 28; see also N.T. Jury Trial, 10/16/18, at

103. In Appellant’s view, this testimony was relevant and admissible because

it showed that Appellant did not intend to defraud the victim, and the trial

court erred when it did not allow him to elicit this statement from the victim

on cross-examination. Id.

      We review claims involving the admission of evidence for an abuse of

discretion. Commonwealth v. Gill, 206 A.3d 459, 466 (Pa. 2019). When a

trial court “comes to a conclusion through the exercise of its discretion, there




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is a heavy burden on the appellant to show that this discretion has been

abused.” Id.

      The trial court “found dispositive” Pa.R.E. 410(a)(4), which expressly

precludes the admission of statements made during plea discussions if the

discussions did not result in a guilty plea. Trial Court Opinion, 6/24/19, at 7;

see also Commonwealth v. Burno, 154 A.3d 764, 783-84 (Pa. 2017).

Appellant concedes that his offer to pay back the money was made during

plea negotiations. However, he maintains that Rule 410(a)(4) does not apply

to him because the rule “seeks to protect the interest of the defendant, not

the Commonwealth’s witnesses.” Appellant’s brief at 31. He cites to Burno,

supra, a case where we affirmed the trial court’s ruling precluding the

Commonwealth from admitting a confession that the defendant made during

plea negotiations.   However, neither Rule 410(a)(4) nor Burno make any

distinction between evidence beneficial or detrimental to the defense.      We

decline to create such a distinction here.

      Appellant also contends that an exception to Pa.R.E. 408(a) allows for

the admission of the evidence. That rule provides:

      Pa.R.E. 408. Compromise Offers and Negotiations

      (a) Prohibited Uses. Evidence of the following is not admissible—
      on behalf of any party—either to prove or disprove the validity or
      amount of a disputed claim or to impeach by a prior inconsistent
      statement or a contradiction:

        (1) furnishing, promising, or offering—or accepting,
        promising to accept or offering to accept—a valuable


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        consideration in compromising or attempting to compromise
        the claim; and

        (2) conduct or a statement made during compromise
        negotiations about the claim.

      (b) Exceptions. The court may admit this evidence for another
      purpose, such as proving a witness’s bias or prejudice, negating a
      contention of undue delay, or proving an effort to obstruct a
      criminal investigation or prosecution.

      Without any authority to support his position, Appellant baldly asserts

that the excluded evidence would have addressed the issue of whether

Appellant unduly delayed the reimbursement of the victim. Appellant’s brief

at 30-31.   This argument, while deficiently developed here, was not even

presented to the trial court. Therefore, it is waived and we are barred from

considering it here. Pa.R.A.P. 302 (issues not raised in the lower court are

waived on appeal).

      Moreover, the trial court found that the evidence did not survive a

threshold relevancy analysis. N.T. Jury Trial, 10/16/18, at 103-04; see also

Pa.R.E. 401. Appellant’s willingness to refund the victim’s money in exchange

for the resolution of the criminal charges did nothing to negate his repeated

refusals to either perform on the contract or return the victim’s money prior

to the filing of the criminal charges. Id. Accordingly, we find that the trial

court did not abuse its discretion when it ruled the proffered evidence

inadmissible.

      In his final claim, Appellant attacks the weight of the evidence to support

his conviction for home improvement fraud. Appellant’s brief at 32. Such a

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claim is addressed in the first instance to the discretion of the trial court. As

we explained in Commonwealth v. Stokes, 78 A.3d 644, 650 (Pa.Super.

2013):

      A new trial should not be granted because of a mere conflict in the
      testimony or because the judge on the same facts would have
      arrived at a different conclusion. A trial judge must do more than
      reassess the credibility of the witnesses and allege that he would
      not have assented to the verdict if he were a juror. Trial judges,
      in reviewing a claim that the verdict is against the weight of the
      evidence, do not sit as the thirteenth juror. Rather, the role of
      the trial judge is to determine that notwithstanding all the facts,
      certain facts are so clearly of greater weight that to ignore them
      or to give them equal weight with all the facts is to deny justice.

Id. In short, a verdict should not be overturned on this basis unless “it is so

contrary to the evidence as to shock one’s sense of justice.” Commonwealth

v. Cash, 137 A.3d 1262, 1270 (Pa. 2016).

      Our standard of review when presented with a weight of the evidence

claim is distinct from the standard of review applied by the trial court:

      Appellate review of a weight claim is a review of the 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, 1055 (Pa. 2013) (internal citations

omitted) (emphasis in original).




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      In its opinion, the trial court expressly rejected Appellant’s contention

that the verdict was against the weight of the evidence because the

Commonwealth did not prove that Appellant possessed the necessary mens

rea for home improvement fraud. The court credited the victim’s testimony

that “Appellant took her money, failed to perform the work requested, failed

to maintain contact, and failed to return the money upon request” and

concluded that the “verdict does not shock the conscience of this [c]ourt and

is without merit.” Trial Court Opinion, 6/24/19, at 5. We find no abuse of

discretion on the part of the trial court in concluding that the verdict was not

against the weight of the evidence.

      Appellant maintains that, because he created building plans, made a list

of materials he needed to acquire in order to complete the job, and continued

communicating with the victim, he did not have the requisite intent to defraud.

Appellant’s brief at 34-35. These facts were brought out to the jury during

Appellant’s testimony. See N.T. Jury Trial, 10/16/18, at 130-33 (testifying

that he submitted a residential permit application); 135-38 (testifying that he

created a “materials list” at Home Depot); 139 (testifying that every time he

received a phone call from the victim he always returned it). Appellant is

merely rehashing the arguments he made at trial, which the jury rejected, as

was its prerogative. See Commonwealth v. Flor, 998 A.2d 606, 626 (Pa.

2010) (reaffirming that the jury is entitled “to believe all, part, or none of the




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evidence, and credibility determinations rest solely within the purview of the

fact-finder”). Accordingly, no relief is due. We affirm.

      Judgment of sentence affirmed.

Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 3/9/2020




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