J-S65032-15


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA                    IN THE SUPERIOR COURT OF
                                                      PENNSYLVANIA
                            Appellee

                       v.

KIM A. ZAFFINO

                            Appellant                No. 3261 EDA 2014


           Appeal from the Judgment of Sentence October 23, 2014
                in the Court of Common Pleas of Bucks County
             Criminal Division at No(s): CP-09-CR-0003231-2014


BEFORE: BENDER, P.J.E., SHOGAN, J., and JENKINS, J.

MEMORANDUM BY JENKINS, J.:                      FILED NOVEMBER 10, 2015

        Appellant Kim Zaffino appeals from the judgment of sentence entered

in the Bucks County Court of Common Pleas following her jury trial

conviction for attempted theft by deception,1 and insurance fraud.2        After

careful review, we affirm.

        The trial court set forth the relevant facts and procedural history of

this matter as follows:

              On August 27, 2010, the Appellant signed an agreement to
        lease her property at 721 Country Club Lane in Warrington,
        Pennsylvania to Scott and Jennifer Beverly. At trial, Jennifer
        Beverly testified that she saw an ad listing the Appellant’s 721
        Country Club Lane property for rent on Craigslist and contacted
____________________________________________


1
    18 Pa.C.S. § 901(a); 18 Pa.C.S. § 3922(a)(1).
2
    18 Pa.C.S. § 4117(a)(2).
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       the Appellant. The family moved into the house in October of
       2010, and they were evicted in late March or early April of 2011
       for failure to make rent payments.[3] A constable was present on
       the day the Beverlys moved out to ensure smooth transition.
       Ms. Beverly said that aside from a cracked toilet tank, the house
       was in the same condition as when the family moved in. Scott
       Beverly stated that the family did not damage the house in any
       way but that they left some trash in the garage.

             On March 19, 2011, the Appellant emailed Allstate agent
       Ralph Heffley, stating that: “I need to make changes to my
       Home Owners Policy – effective immediately. My policy number
       is 9 08 543551 03/31. I have moved out of the property and
       would like to insure it for tenants and against any potential
       damages they may cause.” Mr. Heffley advised the Appellant
       that she did not qualify for a landlord policy.

             On April 19, 2011, the Appellant reported a claim under
       her homeowner’s policy to Allstate for damage to her 721
       Country Club Lane property.        Mr. Heffley explained to the
       Appellant that the damage might not be covered because she did
       not have the correct policy in place.

             On May 13, 2011, Allstate Senior Claims Analyst Terri
       Hemler and Allstate Property Adjuster Alan Duddy conducted a
       recorded telephone statement with the Appellant regarding her
       claim. During the interview, the Appellant stated that she had
       hired Scott Beverly to perform work at her house and that he
       and his family damaged the property while staying there without
       permission. The Appellant stated that “I had no idea that he had
       moved into the property . . . I indicated to him that he was not
       to stay there. He was not to live there, that was my residence
       and not his . . . As far as I know, nobody was actually living
       there.” Additionally, the Appellant stated that “[t]here was no
       agreement for them to stay at all. I told them that they couldn’t
       maintain that as a residence. It was my residence.”

            The Appellant also noted that “[w]hen I found out that
       they were there, I told them that they could not stay. That if
____________________________________________


3
 On January 13, 2011, and March 11, 2011, Appellant filed Landlord/Tenant
complaints against the Beverlys for outstanding rent on the 721 Country
Club Lane property. Appellant won judgments on those complaints.



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        they were working late hours, they needed to make
        arrangements to leave but that they could not sleep overnight in
        that property.” Furthermore, the Appellant said that “[t]here
        was no lease. There was no rent. There was no payment of
        rent. There was no expectation of payment of rent because they
        were not to stay there. That wasn’t a residence for them.”

              Based on the inconsistent statements regarding the
        Appellant’s arrangement with the Beverlys, Allstate referred the
        claim to Special Agent Mark Sabo with the Attorney General’s
        office for further investigation.     Based on Agent Sabo’s
        investigation, the Attorney General’s office brought charges
        against the Appellant on January 28, 2014.

Trial Court Pa.R.A.P. 1925(a) Opinion, March 17, 2015 (“1925(a) Opinion”),

pp. 1-3 (record citations omitted).

        On October 23, 2014, following a three-day trial, a jury convicted

Appellant of attempted theft by deception and insurance fraud. On October

23, 2014, the trial court sentenced Appellant to one year of probation on

each conviction, for an aggregate sentence of two years’ probation.

Appellant filed a timely notice of appeal on November 17, 2014.4

        Appellant raises the following issue for our review:

        1. Was the evidence insufficient as a matter of law to support
        [Appellant’s] convictions for attempted theft by deception and
        insurance fraud, where the Commonwealth failed to establish
        that [Appellant] acted with the requisite intent, and where the
        Commonwealth failed to prove the element of materiality?

Appellant’s Brief, p. 4.



____________________________________________


4
    Both Appellant and the trial court complied with Pa.R.A.P. 1925.



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      Appellant claims that the Commonwealth adduced insufficient evidence

to support her convictions. See Appellant’s Brief, pp. 10-17. Specifically,

Appellant claims the evidence presented did not prove beyond a reasonable

doubt the element of intent. See id. This claim lacks merit.

      When examining a challenge to the sufficiency of evidence, this Court’s

standard of review is as follows:

      The standard we apply in reviewing the sufficiency of the
      evidence is whether 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 considered. Finally, the
      [trier] 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. Smith, 97 A.3d 782, 790 (Pa.Super.2014).

1. Attempted Theft By Deception.

      Under the Pennsylvania Crimes Code, “[a] person commits an attempt

when, with intent to commit a specific crime, he does any act which

constitutes a substantial step towards the commission of the crime.”        18



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Pa.C.S. § 901(a). The Crimes Code defines theft by deception, in relevant

part, as follows:

      (a) Offense defined.--A person is guilty of theft if he
      intentionally obtains or withholds property of another by
      deception. A person deceives if he intentionally:

         (1) creates or reinforces a false impression, including false
         impressions as to law, value, intention or other state of
         mind; but deception as to a person’s intention to perform a
         promise shall not be inferred from the fact alone that he
         did not subsequently perform the promise[.]

18 Pa.C.S. § 3922(a)(1).

      Further, we note that “intent can be proven by direct or circumstantial

evidence; it may be inferred from acts or conduct or from the attendant

circumstances.”     Commonwealth        v.   Franklin,    69   A.3d   719,   723

(Pa.Super.2013).

      The trial court analyzed Appellant’s sufficiency claim as it pertains to

her attempted theft by deception conviction as follows:

      [T]he Appellant intentionally took a substantial step towards
      obtaining the property of another by deception because she filed
      a claim under her homeowner’s policy with Allstate, knowing that
      she was not entitled to receive money for this claim.
      Additionally, ample evidence was presented to establish that the
      Appellant attempted to obtain money by deception because,
      during her recorded statement with Allstate agents, she denied
      giving the Beverlys permission to live at her property despite the
      fact that she signed a lease with Scott and Jennifer Beverly.
      Furthermore, the Attorney General presented evidence that the
      Appellant knew these statements were false because she and the
      Beverlys signed a residential lease agreement for her property at
      721 Country Club Lane on August 27, 2010.




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1925(a) Opinion,     p. 6   (record citations omitted).       After   discussing

Appellant’s unsuccessful attempts to change her homeowner’s policy into a

landlord policy discussed supra, the trial court further stated:

             The Appellant’s inquiries regarding the landlord policy, and
      Mr. Heffley’s responses, demonstrate that she was aware that
      her homeowner’s policy would not cover losses from tenants and
      that she would need a landlord policy to cover potential damages
      from tenants. Thus, the evidence established that the Appellant
      knew that the existence of a lease was critical to whether or not
      she could collect under her homeowner’s policy and that telling
      Allstate agents that she was not renting out the property would
      entitle her to money for her losses under her homeowner’s
      policy.

Id. at 7. Finally, the trial court concluded:

            The lease, the recorded statement, the admissions of
      Appellant, and the testimony of Allstate agents provided more
      than sufficient evidence to support the Appellant’s conviction for
      [a]ttempted [t]heft by [d]eception.

Id.

      We agree with the trial court that this evidence, viewed in the light

most favorable to the Commonwealth as verdict winner, sufficiently enabled

the jury to find every element of attempted theft by deception beyond a

reasonable doubt.

2. Insurance Fraud.

      Under the Crimes Code, an individual commits the crime of insurance

fraud if the individual:

      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

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      claim that contains any false, incomplete or misleading
      information concerning any fact or thing material to the claim

18 Pa.C.S. § 4117(a)(2).

      The trial court addressed the sufficiency of the Commonwealth’s

evidence as to this conviction as follows:

      [T]he conviction for insurance fraud is supported by evidence
      that the Appellant made false statements to Allstate agents
      regarding the Beverlys’ status as tenant at her property, and
      that she did so knowingly and with the intent to defraud Allstate.
      . . . [T]he evidence showed that the Appellant made false
      statements to Allstate during the recorded statement because
      the Appellant insisted to Ms. Hemler and Mr. Duddy that the
      Beverlys were not leasing her property and that she specifically
      told them on multiple occasions that they were not to stay there.
      Furthermore, during conversation with Mr. Heffley, the Appellant
      was advised that she needed renter’s insurance and that she was
      denied it.

1925(a) Opinion, pp. 7-8.

      Again, we agree with the trial court that the Commonwealth presented

sufficient evidence for the jury to find every element of insurance fraud

beyond a reasonable doubt.

      Judgment of sentence affirmed.

Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 11/10/2015



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