J-A22038-15


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA,                    IN THE SUPERIOR COURT OF
                                                       PENNSYLVANIA
                            Appellee

                       v.

ANIL K. AGARWAL,

                            Appellant                No. 2188 MDA 2014


          Appeal from the Judgment of Sentence December 15, 2014
              in the Court of Common Pleas of Schuylkill County
              Criminal Division at No.: CP-54-CR-0000203-2014


BEFORE: BOWES, J., JENKINS, J., and PLATT, J.*

MEMORANDUM BY PLATT, J.:                        FILED SEPTEMBER 17, 2015

        Appellant, Anil K. Agarwal, appeals from the judgment of sentence

entered on December 15, 2014, following his jury conviction of attempted

theft by deception, and insurance fraud.1      On appeal, Appellant challenges

the sufficiency of the evidence and his competency to stand trial. For the

reasons discussed below, we affirm.

        We take the underlying facts and procedural history in this matter

from the trial court’s February 23, 2015 decision, the October 22, 2014

notes of testimony, and our independent review of the certified record.


____________________________________________


*
    Retired Senior Judge assigned to the Superior Court.
1
    18 Pa.C.S.A. §§ 901, 3922, and 4117(a)(2), respectively.
J-A22038-15


     The instant matter concerns the alleged burglary, on June 14, 2011, of

a property located at 10-12 Market Street, Kelayres, Schuylkill County,

Pennsylvania.   Appellant claimed that the burglar had taken or damaged

many valuable items, including but not limited to an antique piano, a king-

size mattress, a queen-size mattress, custom-made silk clothing, jewelry,

two expensive televisions, electronics, 200-hundred feet of fencing, a laptop

computer, a copier, an all-in-one printer, two ladders, and power tools.

(See N.T. Trial, 10/22/14, at 135-38, 144-45, 150-57). The lot at 10-12

Market Street consists of two houses at the front of the lot and a separate

rear structure, alternately described as a very small house or an apartment.

(See id. at 95, 105, 107).       The incident involves this rear structure

(apartment).

     During the spring of 2011, Appellant was involved in a dispute with

Mid-County Resources (Mid-County), who alleged to have purchased the

entire lot at a tax sale. (See id. at 95). Appellant claimed his wife, who

owns many properties in Pennsylvania and New Jersey, owned the lot. (See

id. at 95, 121-22).   Appellant is unemployed, but does assist his wife in

managing the properties in both states.    (See id. at 120-21).    Appellant

alternately stated that he lived in the apartment and that he did not reside




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in it but sometimes stayed there overnight. (See id. 121, 129-31).2        No

one lived in the apartment in the winter of 2010-11, because there was no

water service and pipes burst and flooded it. (See id. at 123-24). During

the spring of 2011, third parties sometimes resided there. (See id. at 121-

22, 196-97).

       In April 2011, Paul Young, a property manager for Mid-County, went to

inspect the lot. (See id. at 193-95, 198-200). He found the apartment to

be in a terrible condition, containing garbage, dirty dishes, mouse droppings,

mold, broken pipes, feces in the toilet, a leaking ceiling, and no running

water. (See id. at 199). Young did not observe any of the valuables listed

above in the apartment. (See id. at 205-09).

       In June 2011, Young obtained permission from Kline Township to put a

dumpster on the property for trash removal. (See id. at 200, 265). It is

Mid-County’s policy to save any items of value or in good condition. (See

id. at 201, 215, 236-37). It throws away any items that are unsalvageable.

(See id.). On the morning of June 14, 2011, Young, together with two of

his employees, Evan Lindermuth and Joe Plummer, went to the apartment to

clean it out. (See id. at 214, 234-35). Young found the apartment to be in

even worse shape than it had been in April. (See id. at 201-02).

____________________________________________


2
  The evidence at trial demonstrated that Appellant did not reside at the
apartment because he kept all of his cars in New Jersey and, in a recorded
statement, he stated that he lived in New Jersey. (See id. at 138-40).



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      The men noted that the outside and rear porch were in poor condition.

(See id. at 215-16).    All three men claimed the apartment had a broken

window, was filthy, smelled so badly that they had to work wearing masks,

and had no water or electricity. (See id. at 215-18, 239, 241, 252). The

toilet contained feces and there was rotting food in the refrigerator. (See

id.). More rotting food, papers, and soiled clothing covered the floor. (See

id. at 209-10, 224, 240).        While there were two televisions in the

apartment, they were of the old tube-type. (See id. at 206, 223). There

was a piano, but the men ascertained that it was not playable, rotting and

filled with garbage. (See id. at 208-09, 218, 227, 242-43).       They did not

see any of the other items listed above in the apartment. (See id. at 205-

09, 225, 228-29, 247). There was so much trash in the apartment that it

over-filled the dumpster and the men did not find any items that were worth

salvaging. (See id. at 228, 238, 241-42, 250, 253-54). Within a week of

cleaning out the apartment, Lindermuth and Plummer made separate lists of

the items in the apartment and their condition; those lists described a filthy,

uninhabitable apartment filled with garbage, cheap damaged furniture,

soiled clothing and linens, and rotting food. (See id. at 221-30; 244-54).

      On June 14, 2011, Appellant contacted Chief John Petrilla of the Kline

Township Police Department and reported that a third party left the

apartment in the morning and returned to discover that someone had

burglarized it. (See id. at 126, 261, 263). The next day, Chief Petrilla met


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with Appellant and told him that Mid-County had cleaned out the apartment

and a burglary had not occurred.        (See id. at 264).    Chief Petrilla told

Appellant that he could pursue a civil action against Mid-County if he wished.

(See id. at 265).      During that meeting, Appellant gave Chief Petrilla an

itemized list, with estimated values, of the stolen property.      (See id. at

264).    Appellant claimed the items were worth in excess of $120,000.00.

(See id. at 135, 157-59).

        On June 20, 2011, Chief Petrilla again met with Appellant. (See id. at

266).    At that time, he observed that several of the items that Appellant

listed as stolen were sitting in the apartment. (See id. at 269-72). Chief

Petrilla pointed them out to Appellant, who explained that, although the

items were on the list of stolen property, the burglar had broken back into

the apartment and returned them.         (See id. at 270-71).     Chief Petrilla

confiscated the items and the Commonwealth entered them into evidence at

trial. (See id. at 269-74).

        On the day of the alleged burglary, Appellant filed a claim with Liberty

Mutual Insurance Company, under his homeowner’s insurance policy, for the

value of the stolen property. (See id. at 96). On June 23, 2011, Richard

Stinger, an investigator from Liberty Mutual, met with him at the apartment

to discuss the claim. (See id. at 103). Chief Petrilla had forwarded the list

of stolen property to Liberty Mutual. (See id. at 175). Stinger stated that

the lawn was overgrown and the rear deck of the apartment was covered


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J-A22038-15


with junk. (See id. at 106). Further, the apartment stank, was dirty, and

there was no water service.    (See id. at 110).   It was also infested with

insects, so Stinger had to conduct the interview outside. (See id. at 112).

     During the recorded interview, Appellant went over the list with

Stinger and confirmed its accuracy. (See id. at 111, 132-34). He could not

produce any documents that confirmed either the existence of the items or

his ownership of them.     (See id. at 157-58).      Stinger had suspicions

regarding the claim because he believed the property was too small to hold

that many items and the quality of the belongings in the home was not

indicative of the values that Appellant claimed for the missing things. (See

id. 160-62).   Liberty Mutual ultimately denied coverage and alerted the

Pennsylvania Attorney General of possible fraud in connection with the

incident. (See id. at 168, 172, 189-90).

     On March 26, 2014, the Commonwealth filed a criminal information

charging Appellant with the above-listed offenses.     A trial took place on

October 22 and 23, 2014. At trial, Appellant waived his right to testify on

his own behalf.     During the waiver colloquy, the following exchange

occurred.

      The Court: Do you have any mental or emotional health issues
     of any nature that may impair your ability to understand the
     proceedings and your ability to make decisions?

     [Appellant]: No, but I have a—like a syndrome that if I get tired
     because I am like half brain dead—

     The Court: You are what?

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J-A22038-15



     [Appellant]: Half brain dead. Like this side of the brain is dead.

                                *    *    *

     [Appellant]: Yeah. So I was paralyzed and all that like, you
     know, for a few months and all that. So I have to use this side
     of brain to do the function of this side of brain. So if I am like
     somewhere like prolonged, like five, six hours, more than that,
     then I cannot understand right way, like what is going on.

     The Court:      Okay.   Are you—do you have any mental or
     emotional health or physical issues that you believe is impairing
     your ability right now—

     [Appellant]: No.

                                *    *    *

     The Court:   Now let’s talk about what he mentioned about his
     brain.

     Mr. Brennan [defense counsel]: That’s—

     The Court: Have you detected anything with regards to any
     physical problem or anything with regard to—and I don’t know
     quite how to say it—but the way a mind would work as far as
     responding to your questions and your discussions that would
     indicate to you that for some reason he’s not able to make a
     competent decision because of what he just brought up about his
     brain?

     Mr. Brennan: Yes, well, Your Honor, let me state this is the first
     I heard of that, by the way, the statement about his brain.

           But let me state on the record, Your Honor, in addition to
     my trial practice, I also do wills and estates. I regularly meet
     with people who are suffering from maybe dementia or slowing
     down. I’m generally familiar with that, although I’m not an
     expert; but I’m familiar with meeting with elderly clients dealing
     with someone who may not be altogether able to make
     decisions.

           I have seen none of those symptoms as a lay person would

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J-A22038-15


      notice them in my client. Every time I called him or talked to
      him, he seemed very much aware of the time and place, the
      case that was going on. He’s very well-educated, Your Honor.

            The only medical condition you saw during the trial were—
      because of some medication, he has to go to the bathroom a lot.
      Other than that, Judge, I have not seen anything that would lead
      me to believe that there is a mental issue here. Had there been,
      Your Honor, and quite honestly, I would have petitioned the
      Court for an examination; but—

      The Court: Okay.

      Mr. Brennan: —I don’t see that.

(N.T. Trial, 10/23/15, at 313-14, 320-21). On October 23, 2014, the jury

found Appellant guilty of all charges.

      On December 15, 2014, the trial court sentenced Appellant to a term

of incarceration of not less than eleven days nor more than twenty-four

months less one day to be followed by a three-year term of probation. At

sentencing, the parties discussed whether Appellant might have some

mental     health   issues;   however,   the   trial   court   agreed   with   the

Commonwealth that Appellant was competent.               (See N.T. Sentencing,

12/15/14, at 22, 28, 31, 37).       Appellant did not file any post-sentence

motions.

      On December 24, 2014, Appellant filed a timely notice of appeal. On

December 29, 2014, the trial court ordered Appellant to file a concise

statement of errors complained of on appeal.            See Pa.R.A.P. 1925(b).

Appellant filed a timely Rule 1925(b) statement on January 23, 2015. On

February 23, 2015, the trial court filed an opinion. See Pa.R.A.P. 1925(a).

                                     -8-
J-A22038-15


      Appellant raises the following questions for our review:

      I.     Whether the judgment of conviction must be vacated
             because the evidence was not sufficient, as to each
             element to support a conviction for attempt to commit
             theft by deception[?]

      II.    Whether the judgment of conviction must be vacated
             because the evidence was not sufficient as to each element
             to support a conviction for insurance fraud[?]

      III.   Whether the convictions must be vacated because
             [Appellant] was deprived of due process where his
             competency to formulate criminal intent, stand trial,
             and/or waive his Fifth Amendment Right was not properly
             considered and assessed[?]

(Appellant’s Brief, at 2-3).

      In his first two issues, Appellant claims the evidence was insufficient to

sustain his conviction. Specifically, Appellant claims that the Commonwealth

failed to prove he acted with intent. (See id. at 10). We disagree.

      Our standard of review for sufficiency of the evidence claims is well

settled:

            We must determine whether the evidence admitted at trial,
      and all reasonable inferences drawn therefrom, when viewed
      in a light most favorable to the Commonwealth as verdict
      winner, support the conviction beyond a reasonable doubt.
      Where there is sufficient evidence to enable the trier of fact to
      find every element of the crime has been established beyond a
      reasonable doubt, the sufficiency of the evidence claim must fail.

            The evidence established at trial need not preclude every
      possibility of innocence and the fact-finder is free to believe all,
      part, or none of the evidence presented. It is not within the
      province of this Court to re-weigh the evidence and substitute
      our judgment for that of the fact-finder. The Commonwealth’s
      burden may be met by wholly circumstantial evidence and any
      doubt about the defendant’s guilt is to be resolved by the fact

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J-A22038-15


       finder unless the evidence is so weak and inconclusive that, as a
       matter of law, no probability of fact can be drawn from the
       combined circumstances.

Commonwealth v. Tarrach, 42 A.3d 342, 345 (Pa. Super. 2012) (citation

omitted) (emphasis added).

       A defendant is guilty of an attempt if “with intent to commit a specific

crime, he does any act which constitutes a substantial step toward the

commission of that crime.”     18 Pa.C.S.A. § 901(a).   A defendant commits

the crime of theft by deception when “he intentionally obtains or withholds

property of another by deception.”      18 Pa.C.S.A. § 3922(a).     We define

deception as intentionally: (1) creating or reinforcing a false impression; (2)

preventing “another from acquiring information which would affect his

judgment of a transaction;” or (3) failing “to correct a false impression which

the deceiver previously created or reinforced[.]” 18 Pa.C.S.A. § 3922(a)(1)-

(3).   The crime is finished at the time the defendant communicates the

intentional deception to the property owner.        See Commonwealth v.

Pappas, 845 A.2d 829, 839 (Pa. Super. 2004), appeal denied, 862 A.2d

1254 (Pa. 2004).

       Here, while Appellant did not obtain the property at issue, namely the

proceeds from the insurance claim, he took a “substantial step” towards




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J-A22038-15


obtaining it.3 On June 14, 2011, Appellant filed a claim with Liberty Mutual

for the property allegedly stolen from the apartment. He submitted a list to

Chief Petrilla of the missing property with estimated values for each item.

Chief Petrilla forwarded that list to Liberty Mutual and Appellant confirmed

its accuracy during his interview with Richard Stinger. He claimed that the

value of the missing items was in excess of $120,000.00.          Viewing this

evidence, as we must, in the light most favorable to the Commonwealth, it

shows that Appellant took a substantial step towards obtaining Liberty

Mutual’s money by filing an insurance claim and providing a written list of

the missing items and their estimated values to Liberty Mutual.

       The evidence at trial was also sufficient to show the use of deception.

Chief Petrilla saw several of the allegedly stolen things in the apartment

____________________________________________


3
  We note that Appellant erroneously views the evidence in the light most
favorable to him. (See Appellant’s Brief, at 11-19). Further, we take issue
with Appellant’s claim that the trial court questioned the sufficiency of
evidence at sentencing. (See id. at 18-19). Appellant takes the quoted
statements out-of-context. (See id.). A reading of that entire portion of
the sentencing transcript shows that the trial court was commenting that
Appellant’s story was so bizarre and unbelievable that it indicated that he
might have mental health problems. (See N.T. Sentencing, 12/15/14 at 30-
31). Lastly, we note that, to the extent that Appellant claims that the
evidence was insufficient to sustain his convictions because of
inconsistencies in the testimony, (see Appellant’s Brief, at 17-18), such a
claim goes to the weight, not sufficiency, of the evidence.            See
Commonwealth v. Johnson, 910 A.2d 60, 65 (Pa. Super. 2006), appeal
denied, 923 A.2d 1173 (Pa. 2007). Appellant did not raise a weight of the
evidence claim in his statement of the questions involved (see Appellant’s
Brief, at 2), nor could he because he did not preserve such a claim below.
See Commonwealth v. Burkett, 830 A.2d 1034, 1036 (Pa. Super. 2003).



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approximately one week after the alleged theft; Appellant admitted that he

had listed those items on the list but claimed that the thief had returned

them.    Further, he overstated, to the point of absurdity, the value of the

other articles, for instance claiming that a broken and rotting piano was

worth $47,000.00. (See N.T. Trial, 10/22/14, at 136-37). The evidence at

trial also demonstrated that, both in April 2011 and on the date of the

alleged burglary, with the exception of the rotting piano, many of the

expensive pieces listed by Appellant were not in the apartment. Moreover,

items such as clothing were soiled and covered in garbage, and the

televisions were old tube-type sets, not the expensive ones Appellant

claimed were missing.       Lastly, while there were some minor discrepancies

between     the   lists   prepared   by   Lindermuth   and   Plummer,   nothing

corroborated Appellant’s claims of an apartment filled with valuable

possessions.

        Appellant argues that the values were mere estimates and that an

insurance company often disputes property values, thus the Commonwealth

failed to show intent to deceive.          (See Appellant’s Brief, at 13-14).

However, based upon the testimony of Stinger, Young, Lindermuth and

Plummer regarding the condition of the apartment and the things therein,

the jury could easily conclude that Appellant grossly over-estimated values

of the articles. In combination with his attempt to claim money for pieces

that were present in the apartment after the alleged theft, the evidence is


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J-A22038-15


more than sufficient to demonstrate that Appellant attempted to deceive the

insurance company. See Commonwealth v. Sanchez, 848 A.2d 977, 983

(Pa. Super. 2004) (evidence that defendant filed false insurance claim and

“reinforced the false impression” in claim is sufficient to prove theft by

deception.).   Appellant’s first claim lacks merit.

       Appellant’s second issue maintains that the evidence was insufficient

to sustain his conviction for insurance fraud. (See Appellant’s Brief, at 16-

19).

       We define the offense of insurance fraud as an act by a person who:

       Knowingly and with the intent to defraud any insurer or self-
       insured, presents or causes to be presented to any insurer or
       self-insured any statement forming a part of, or in support of, a
       claim that contains any false, incomplete or misleading
       information concerning any fact or thing material to the claim.

18 Pa.C.S.A. § 4117(a)(2).

       Here,   the   evidence   demonstrated     that   Appellant   presented   a

statement forming or in support of an insurance claim by filing a claim with

Liberty Mutual regarding the alleged theft of personal property at the

apartment. Appellant gave the police a list of the missing items and their

estimated values, the police forwarded the list to Liberty Mutual, and he

affirmed the accuracy of that list, both as to the things taken and as to their

values, in his recorded interview with Stinger.       That estimate totaled over

$120,000.00.




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J-A22038-15


     As   discussed   in   detail   above,     Appellant’s   recorded   statement

demonstrated that the apartment was uninhabited in the winter of 2010-11,

because of flooding and lack of water service. Further, the evidence showed

that Appellant did not reside in the apartment but merely stayed there when

working on properties in the area, and that various third parties sometimes

resided in the apartment.       Moreover, the evidence demonstrated that

Appellant was still in possession of some of the pieces on the list a week

after the theft. In addition, the evidence showed that many of the articles

allegedly stolen were not in the apartment in April 2011 and not there on the

day of the alleged theft.     The testimony of all of the Commonwealth’s

witnesses showed that the apartment was in deplorable condition, the items

in the apartment were cheap, broken, soiled and otherwise valueless.

Lastly, the evidence revealed that Appellant over-stated the value of the

articles to the point of absurdity.      The list of missing things and their

accompanying valuations was material because it formed the basis of

Appellant’s claim for compensation.

     It is settled that the Commonwealth may meet its burden of proof

based entirely on circumstantial evidence.       See Tarach, supra; see also

Commonwealth v. Vargas, 108 A.3d 858, 868-69 (Pa. Super. 2014).

Further, the jury may infer intent from the defendant’s conduct.             See

Vargas, supra at 869 (inferring intent to possess narcotics with intent to

deliver); see also Commonwealth v. Buford, 101 A.3d 1182, 1186 (Pa.


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J-A22038-15


Super. 2015), appeal denied, 114 A.3d 415 (Pa. 2015) (intent to kill can be

inferred from use of deadly weapon on vital part of body).       Based on the

evidence discussed above, the jury could properly infer that Appellant, in an

attempt to obtain money he was not entitled to from the insurance

company, intentionally provided a false list to Liberty Mutual seeking

proceeds for items that were still in his possession and substantially over-

inflating the values of other items, in an attempt to defraud it. Appellant’s

second claim lacks merit.

      In his final claim, Appellant argues that he was deprived of a fair trial

because he was incompetent to participate in a criminal proceeding. (See

Appellant’s Brief, at 20-24). Specifically, he alleges that issues regarding his

mental health arose during the trial and at sentencing but no one ever

requested a competency evaluation. (See id. at 20). Appellant waived his

claim.

            A defendant is presumed to be competent to stand trial.
      Thus, the burden is on the defendant to prove, by a
      preponderance of the evidence, that he was incompetent to
      stand trial. In order to prove that he was incompetent, the
      defendant must establish that he was either unable to
      understand the nature of the proceedings against him or unable
      to participate in his own defense.

            Stated otherwise, the relevant question in a competency
      determination is whether the defendant has sufficient ability at
      the pertinent time to consult with counsel with a reasonable
      degree of rational understanding, and to have a rational as well
      as a factual understanding of the proceedings.




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J-A22038-15


               We extend great deference to the trial judge’s
         determination as to competency because he or she had the
         opportunity to observe directly a defendant's behavior.
         Furthermore, we note that it is a proper exercise of the trial
         court’s discretion to accept one expert witness’s opinion over
         that of a conflicting opinion where the record adequately
         supports such a resolution.

Commonwealth v. Flor, 998 A.2d 606, 617-18 (Pa. 2010), cert. denied,

131 S.Ct. 2102 (2011) (citation omitted).

         In his brief, Appellant admits that he did not preserve this issue at

trial.   (See id. at 20 n.8).   Yet, Appellant argues that this Court held in

Commonwealth v. Megella, 408 A.2d 483, 485 (Pa. Super. 1979), that

the failure to raise the issue of a defendant’s competency at trial, does not

waive the matter on appeal. (See Appellant’s Brief, at 20 n.8). However, in

Megella, this Court found that the defendant had preserved the issue by

raising and litigating it in post-trial motions. See Megella, supra at 485.

Here, Appellant did not file a post-trial motion and did not litigate the

question below.      Rather, Appellant raised it for the first time in his Rule

1925(b) statement. An appellant cannot raise matters for the first time in a

Rule 1925(b) statement. See Commonwealth v. Coleman, 19 A.3d 1111,

1118 (Pa. Super. 2011) (issues raised for first time in Rule 1925(b)

statement are waived). Further, an appellant cannot raise a subject for the

first time on appeal.     See Commonwealth v. Hanford, 937 A.2d 1094,

1098 n.3 (Pa. Super. 2007), appeal denied, 956 A.2d 432 (Pa. 2008) (new




                                      - 16 -
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legal theories cannot be raised for first time on appeal); Pa.R.A.P. 302(a).

Thus, we find that Appellant waived this claim.

       Moreover, in effect, Appellant is claiming that trial counsel was

ineffective for failing to request a competency hearing. 4      (See Appellant’s

Brief, at 20-24).        However, Appellant must raise claims of ineffective

assistance of counsel on collateral review.            See Commonwealth v.

Holmes, 79 A.3d 562, 576 (Pa. 2013).               Therefore, to the extent that

Appellant is claiming that he received ineffective assistance of trial counsel,

we dismiss any such claim without prejudice for Appellant to seek collateral

review under the Post Conviction Relief Act (PCRA), 42 Pa.C.S.A. §§ 9541-

9546, in accordance with the Pennsylvania Supreme Court’s opinion in

Commonwealth v. Grant, 813 A.2d 726, 737 (Pa. 2002).                  See also

Holmes, supra at 576.           Otherwise, Appellant’s third claim is waived and

does not merit relief.

       Accordingly, for the reasons discussed above, we affirm the judgment

of sentence.

____________________________________________


4
   We note for clarity that mental health is not the equivalent (or a
precondition of) competency to stand trial. Therefore, the mere assertion of
mental health issues, particularly without any supporting medical opinion,
does not establish incompetency to stand trial. The trial court properly
treated the two issues separately.       See 50 P.S. 7402(a); see also
Commonwealth v. Tyson, 402 A.2d 995, 997 (Pa. 1979) (“Even though
one has a history of mental illness that person may, at a given time, be
competent to stand trial and may have been legally sane at the time of the
commission of the crime.”).



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J-A22038-15


     Judgment of sentence affirmed.



Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 9/17/2015




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