J-S07016-17


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA                     IN THE SUPERIOR COURT OF
                                                       PENNSYLVANIA
                        Appellee

                   v.

ROBERT ANTHONY KOLOVICH

                        Appellant                    No. 2220 MDA 2015


        Appeal from the Judgment of Sentence September 28, 2015
             In the Court of Common Pleas of Bradford County
           Criminal Division at No(s): CP-08-CR-0000768-20414


BEFORE: BOWES, J., LAZARUS, J., and MUSMANNO, J.

MEMORANDUM BY LAZARUS, J.:                              FILED MAY 17, 2017

     Robert Anthony Kolovich appeals from his judgment of sentence,

entered in the Court of Common Pleas of Bradford County, after a jury found

him guilty of multiple charges related to the theft of funds he received from

homeowners for the construction of a deck. Upon careful review, we affirm.

     The trial court set forth the facts of this matter as follows:

     [Bobbee and George] Wilcox saw an advertisement for a decking
     system so they contacted [Kolovich]. [Kolovich] came to their
     home in May, 2013 and promised to complete the “deck fitter
     system.” A [p]urchase [a]greement dated May 29, 2013 was
     signed and [Kolovich was] given a downpayment of $9,000.00
     towards the total price of $18,000.00. Work was to begin within
     five to seven weeks. [Kolovich] did not appear in the five to
     seven weeks. Mrs. Wilcox contacted him numerous times and
     even called the distributor of the materials. She [spoke] to him
     approximately three times. [Kolovich] told Mrs. Wilcox that as a
     result of hurricanes, it was difficult to obtain materials. He also
     advised that it would not be long. [Kolovich] did appear at the
     Wilcox home a second time and advised that he would get there
     to complete the work. The Wilcoxes travelled to [Kolovich’s]
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        place of business in Selinsgrove, Pennsylvania twice. One of the
        times was at Thanksgiving. Both times, no one was in the office.
        Mrs. Wilcox wrote a letter requesting that money be returned
        and sent it to both the business address and his home address.
        The letter with the business address was returned to her,
        however, the letter to the home address was not. The Wilcoxes
        have not had their money returned or the work completed or
        materials delivered.      Further, they have not heard from
        [Kolovich]. Mr. and Mrs. Wilcox [were] 85 and 81 years of
        age[,] respectively[,] at the time of trial.

Trial Court Opinion, 3/30/16, at 2.

        On August 3, 2015, Kolovich filed a motion to bar prosecution on

double jeopardy grounds.          Kolovich had been charged in Sullivan, Centre

and Luzerne Counties with similar crimes and both prosecutions ended in

either dismissal or acquittal. Thus, Kolovich asserted, the Bradford County

prosecution was barred under 18 Pa.C.S.A. § 110, as well as the double

jeopardy clauses of the United States and Pennsylvania constitutions. The

trial court denied that motion. On August 5, 2015, a jury convicted Kolovich

of two counts of deceptive business practices1 and one count each of theft

by deception2 and receiving stolen property (RSP).3             The trial court

sentenced Kolovich on September 28, 2015 to an aggregate term of 11

months’ to 23 months, 29 days’ incarceration, followed by 24 months of

probation. He received credit for 45 days served. Kolovich’s post-sentence


____________________________________________


1
    18 Pa.C.S.A. § 4107(a)(2) and (6).
2
    18 Pa.C.S.A. § 3922(a)(1).
3
    18 Pa.C.S.A. § 3925(a).


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motion was denied and this timely appeal follows, in which he raises the

following issues for our review:

      1. Did the trial court err in denying [Kolovich’s] [m]otion to
      [b]ar [p]rosecution [p]ursuant to the [d]ouble [j]eopardy
      [c]lause of the [f]ederal and [s]tate [c]onstitutions and [section]
      110 [d]ue to [d]ismissal of [c]harges in Luzerne and Sullivan
      Counties and the [a]cquittal of [c]harges in Centre County, PA?

      2. Was the verdict against the weight of the evidence such that
      a jury of reasonable persons would not have been satisfied as to
      [Kolovich’s] guilt?

      3. Did the trial court err in refusing to grant [Kolovich] credit for
      time served where he had been continually incarcerated since
      August 1, 2014 on related charges, under 42 Pa.C.S.A. § 9760?

Brief of Appellant, at 4.

      Kolovich first asserts that the trial court erred in finding that his

prosecution was not barred on double jeopardy grounds.          Kolovich claims

that the charges in this matter stemmed from the same criminal episode as

the charges that he was acquitted of or were dismissed in three other

counties.   Accordingly, he argues prosecution of the charges involving Mr.

and Mrs. Wilcox should have been barred pursuant to section 110 and the

double jeopardy clauses of the U.S. and Pennsylvania constitutions.           We

disagree.

      Section 110, known as the compulsory joinder rule, provides, in

relevant part, as follows:

      Although a prosecution is for a violation of a different provision
      of the statutes than a former prosecution or is based on different
      facts, it is barred by such former prosecution under the following
      circumstances:


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           (1) The former prosecution resulted in an acquittal or in a
           conviction . . . and the subsequent prosecution is for:

                                           ...

               (ii) any offense based on the same conduct or
              arising from the same criminal episode, if such
              offense was known to the appropriate prosecuting
              officer at the time of the commencement of the first
              trial and occurred within the same judicial district as
              the former prosecution unless the court ordered a
              separate trial of the charge of such offense[.]

18 Pa.C.S.A. § 110

        Stated more succinctly, section 110 bars a subsequent prosecution if

the following test is met:

        (1) the former prosecution resulted in an acquittal or conviction;
        (2) the current prosecution was based on the same criminal
        conduct or arose from the same criminal episode; (3) the
        prosecutor in the subsequent trial was aware of the charges
        before the first trial; and (4) all charges [occurred] within the
        same judicial district as the former prosecution.

Commonwealth           v.   Reid,    77   A.3d   579,   582   (Pa.   2013),   quoting

Commonwealth v. Nolan, 855 A.2d 834, 839 (Pa. 2004). Each prong of

this test must be met for section 110 to apply. Commonwealth v. Fithian,

961 A.2d 66, 72 (Pa. 2009).

        Here, we need only address the fourth prong of the compulsory joinder

test, which requires that the current offense occurred within the same

judicial district of the former prosecution.       The victims in this case resided

in Bradford County, the situs of the instant prosecution.4                The prior

____________________________________________


4
    Kolovich’s place of business was located in Selinsgrove, Snyder County.


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prosecutions occurred in Sullivan, Centre and Luzerne Counties. Thus, on its

face, the statute does not appear to bar the Bradford County prosecution.

Kolovich, however, argues that the prior prosecutions were part of the same

criminal episode as the alleged offenses underlying the Bradford County

charges.   Thus, Kolovich asserts, the latter prosecution should be barred.

He is entitled to no relief.

      In Fithian, supra, our Supreme Court addressed a Commonwealth

appeal filed after the Court of Common Pleas of Delaware County dismissed

a drug-related prosecution on the basis of section 110.               There, the

defendants had engaged in a drug transaction, various components of which

occurred in Philadelphia, Montgomery and Delaware Counties. Following the

consummation of the transaction, the defendants were apprehended in

Montgomery County, where they were charged with, and ultimately pled

guilty to, conspiracy and possession with intent to deliver (PWID).

Simultaneously, the defendants were charged in Delaware County with, inter

alia, conspiracy and PWID.         Following their conviction in Montgomery

County,    defendants    filed   motions   to   dismiss   the   Delaware   County

prosecutions pursuant to section 110. In granting the motion and dismissing

all charges, the trial court reasoned that, because the conspiracy to sell the

drugs occurred in both Delaware and Montgomery Counties, the conspiracy

forming the basis of the Delaware County prosecution “occurred within the

same judicial district” as the prior Montgomery County prosecution.           As




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such, the court concluded that the Delaware County prosecution was barred

under section 110. This Court affirmed.

       On allowance of appeal, the Supreme Court affirmed in part and

reversed in part. The Court found that, because a “conspiracy” occurs in any

county where an overt act is committed by any of the conspirators in

furtherance of the unlawful venture, the Delaware County court was barred

from prosecuting the defendants for conspiracy. However, with respect to

the possessory charges, the Court found that Delaware County could move

forward with prosecution.         Specifically, the Court held that, in amending

section 110(1)(ii),5 “the General Assembly intended to preclude from the

____________________________________________


5
 In 2002, the legislature amended section 110(1)(ii). The Fithian Court
provided the following background on that amendment:

       [P]rior to 2002, Section 110(1)(ii) required, in relevant part, that
       “all charges were within the jurisdiction of a single court.” The
       Superior Court consistently interpreted this language as meaning
       the charges that required joinder were circumscribed by county
       territorial boundaries.

       In 1997, our Court had its first opportunity to interpret the
       former statutory language. In Commonwealth v. McPhail,
       [692 A.2d 139 (Pa. 1997) (plurality)], we considered the
       question of whether four drug transactions, three in Washington
       County and one in Allegheny County, all constituting a single
       criminal episode, were within the “jurisdiction of a single court.”
       A plurality of our Court concluded that courts of common pleas
       enjoy jurisdiction all over the Commonwealth—that is, the
       subject matter jurisdiction of the courts of common pleas is
       general and not limited to the territory of the county wherein the
       court sits. Our Court reasoned that under Section 110, all
       charges were in the “jurisdiction of a single court.” Thus, we
       concluded that the Washington County offenses and the
(Footnote Continued Next Page)

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reach of the compulsory joinder statute those current offenses that occurred

wholly outside of the geographic boundaries of the judicial district in which

the former prosecution was brought, even though part of a single criminal

episode.” Id. at 77 (emphasis added).

      Here, Kolovich’s offenses against the Wilcoxes in Bradford County

occurred wholly outside the geographic boundaries of Sullivan, Centre and

Luzerne Counties, where he was previously prosecuted for similar offenses.

Accordingly, under Fithian, even if Kolovich could establish that all of his

offenses were part of a single criminal episode, he cannot satisfy the fourth




                       _______________________
(Footnote Continued)

      Allegheny County offenses should have been joined in a single
      trial. As a practical matter, the Court’s interpretation in McPhail
      led to the “jurisdiction” prong of Section 110(1)(ii) being met in
      every case.

      In direct response to our Court’s decision in McPhail, the
      General Assembly amended Section 110(1)(ii) to its current
      language.    Specifically, the legislature in paragraph (1)(ii)
      substituted the phrase “was within the jurisdiction of a single
      court” with “occurred within the same judicial district as the
      former prosecution.”

      The 2002 amendments, coming as a rejoinder to our Court’s
      decision in McPhail, make the legislature’s intent manifest. In
      light of this history, it is clear to us that the General Assembly
      intended to incorporate, or perhaps re-incorporate, a geographic
      component in determining which offenses are precluded because
      of a former prosecution. That is, the legislature intended that
      the compulsory joinder statute be limited to mandating joinder
      only of those offenses occurring in a single judicial district.

Fithian, 961 A.2d at 76–77 (internal citations omitted).


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prong of the compulsory joinder statute. Accordingly, Kolovich’s claim must

fail.6

         Kolovich next asserts that the evidence was insufficient to sustain his

convictions.7 Specifically, he alleges that the Commonwealth failed to prove

the intent element of the three offenses of which he was found guilty. For

the following reasons, we disagree.

         Kolovich was convicted of deceptive business practices and one count

of receiving stolen property.8            Specifically, Kolovich asserts that the

Commonwealth did not prove the intent element of the crimes, i.e., that



____________________________________________



6
   Kolovich’s statement of questions involved also invokes the double
jeopardy clauses of the Pennsylvania and U.S. constitutions; however, he
sets forth no separate constitutional analyses in the argument section of his
brief. Indeed, his section 110 argument is a mere two pages long and
contains minimal analysis. While we address his section 110 claim, we
decline to address his constitutional claims for lack of development.    See
Commonwealth v. Perez, 93 A.3d 829, 838 (Pa. 2014) (claims failing to
contain developed argument or citation to supporting authorities and record
are waived).



7
  Although Kolovich’s claim is styled as a challenge to the weight of the
evidence, a review of his argument reveals that it is actually a sufficiency
claim. The trial court also treated the claim as one raising sufficiency.
Accordingly, we will address it as such.
8
  Kolovich was also convicted of theft by deception and a second count of
deceptive business practices under subsection 4107(a)(2). However, he
presents no argument specific to those convictions and, accordingly, has
waived any challenge to the sufficiency of the evidence supporting them.


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Kolovich knew at the time he took the money from the Wilcoxes that he

would not return it.

      A person commits the offense of deceptive business practices if, “in

the course of business, the person: . . . (6) makes or induces others to rely

on a false or misleading written statement for the purpose of obtaining

property or credit[.]”   18 Pa.C.S.A. § 4107(a)(6).      A person is guilty of

receiving stolen property if “he intentionally receives, retains, or disposes of

movable property of another knowing that it has been stolen, or believing

that it has probably been stolen, unless the property is received, retained, or

disposed with intent to restore it to the owner.” 18 Pa.C.S.A. § 3925(a).

      Here, the Commonwealth presented evidence that Kolovich placed a

newspaper advertisement for the installation of a decking system, which

induced the Wilcoxes to contact him. Kolovich came to the Wilcoxes’ home

and promised to install the deck system within five to seven weeks for a

total cost of $18,000. Kolovich took a downpayment of $9,000 in the form

of a check, which he subsequently deposited. Kolovich did not return within

the promised five to seven week timespan.          Mrs. Wilcox attempted to

contact Kolovich seven or eight times before finally reaching him on his cell

phone.   When asked for an explanation for the delay, Kolovich told Mrs.

Wilcox that hurricanes in the South had created a materials shortage. When

Mrs. Wilcox asked for the telephone number of Kolovich’s materials supplier,

he refused to give it to her. Mrs. Wilcox spoke to Kolovich or someone in his

office at least three additional times, but they kept “putting us off.”     N.T.

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Trial, 8/5/15, at 32. Kolovich visited the Wilcoxes’ home a second time and

“assured [them] that he was going to get to [them] . . . as soon as he could

get materials[.]” Id. at 34. After hearing nothing more, Mrs. Wilcox wrote

Kolovich a letter and requested a refund on her deposit. She sent copies to

his home and business addresses; the letter sent to the business address

was returned unopened.       The Wilcoxes never heard anything more from

Kolovich and never received a refund.

      Based on the foregoing, we conclude that the evidence adduced at trial

was sufficient to demonstrate the elements of knowledge and intent

necessary to sustain Kolovich’s convictions. See Commonwealth v. Eline,

940 A.2d 421, 433 (Pa. Super. 2007) (intent element of deceptive business

practices established where appellant took deposit and neither began nor

completed installation of pool within time frame agreed upon; appellant also

non-responsive to repeated telephone calls and inquiries by victims;

although appellant did not deliver on promise, appellant refunded no money

when demands made); Commonwealth v. Kelly, 446 A.2d 941, 943 (Pa.

Super. 1982) (necessary mens rea for receiving stolen property may arise

following actual receipt of property; statute, by express terms, makes it

criminal to “retain” stolen property).

      Finally, Kolovich claims that the trial court erred in denying him credit

for time served “on related charges that stem from the same sort of conduct

alleged in this case.” Brief of Appellant, at 13. In support of his argument,




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Kolovich cites section 9760 of the Sentencing Code, which provides, in

relevant part, as follows:

          (1) Credit against the maximum term and any minimum term
          shall be given to the defendant for all time spent in custody as a
          result of the criminal charge for which a prison sentence is
          imposed or as a result of the conduct on which such a charge is
          based. Credit shall include credit for time spent in custody prior
          to trial, during trial, pending sentence, and pending the
          resolution of an appeal.

42 Pa.C.S.A. § 9760(1) (emphasis added).          Kolovich argues that, because

the instant charges are allegedly part of the same criminal episode, the time

he spent in custody in other counties was “a result of the same conduct on

which [this] charge is based” as contemplated by section 9760. Id.

          Kolovich cites no authority for his assertion that the words “same

conduct” should be read to mean “offenses forming part of the same criminal

episode.” Accordingly, we find this claim waived for purposes of appellate

review. Perez, supra.

          Even if this claim were not waived, Kolovich would be entitled to no

relief.    In Commonwealth v. Richard, 150 A.3d 504 (Pa. Super. 2016),

this Court rejected a similar argument. There, the appellant was convicted

of third-degree murder in the death of his wife.           On the date he was

scheduled for release from prison on that conviction, he was arrested,

incarcerated and charged with eight counts of terroristic threats in

connection with threats he had made regarding certain witnesses who

testified at his murder trial.     He was subsequently charged with additional

counts of terroristic threats and witness intimidation, at two additional
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docket numbers, relating to further threats made against trial witnesses.

After a jury trial on the charges pertaining to all three dockets, appellant

was found guilty of terroristic threats and witness intimidation at the latter

two dockets, and was acquitted of the original eight counts of terroristic

threats.

      On appeal, appellant argued that the sentencing court should have

given him credit for time served prior to trial on the eight counts for which

he was acquitted, reasoning that all of the offenses were “inextricably

intertwined.” Id. at 520. This Court rejected that argument, noting that “a

defendant shall be given credit for any days spent in custody prior to the

imposition of sentence, but only if such commitment is on the offense for

which sentence is imposed[.]” Id., quoting Commonwealth v. Clark, 885

A.2d 1030, 1034 (Pa. Super. 2005) (emphasis added).            For the same

reasons, here, Kolovich is entitled to no relief.

      Judgment of sentence affirmed.

      Judge Musmanno joins the Memorandum.

      Judge Bowes concurs in the result.

Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 5/17/2017


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