J-A24018-17


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA                     IN THE SUPERIOR COURT OF
                                                       PENNSYLVANIA
                            Appellee

                       v.

JOANNA CHARLES

                            Appellant                 No. 1344 WDA 2016


          Appeal from the Judgment of Sentence Dated June 20, 2016
              In the Court of Common Pleas of Allegheny County
             Criminal Division at No(s): CP-02-CR-0003957-2015

BEFORE: MOULTON, J., SOLANO, J., and MUSMANNO, J.

MEMORANDUM BY SOLANO, J.:                          FILED OCTOBER 12, 2017

        Appellant, Joanna Charles, appeals from the judgment of sentence

imposed after a jury convicted her of theft by failure to make a required

distribution of funds received, and misapplication of entrusted property.1 We

affirm.

        The charges against Appellant arose from her role as the administrator

of her father’s estate.       The Commonwealth alleged that during a seven-

month period from August 2011 to January 2012, Appellant misappropriated

approximately $22,000. A jury trial commenced on February 29, 2016, and

on March 1, 2016, the jury returned its guilty verdicts.

        The trial court summarized the facts as follows:


____________________________________________
1
    18 Pa.C.S. §§ 3927(a) and 4113(a).
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           In mid-August of 2011, James Charles, Sr. passed away
     intestate. He was survived by three adult children: Appellant,
     James Charles, Jr., and Jamesina Charles. Charles, Jr. retained
     the services of Attorney Sally Frick to handle his father’s estate.
     Appellant’s siblings signed a renunciation, and Appellant was
     appointed as administrator of the estate.

            The estate included a home in Penn Hills, a large amount
     of cash, and several vehicles. At the initial meeting between
     Attorney Frick, Appellant, and Jamesina at the decedent’s home,
     Jamesina and Appellant recovered $8000 cash. These funds
     were turned over to Attorney Frick to be placed in an estate
     account.     Additionally, $14,000 cash was found on the
     decedent’s person at the time of his death, and the coroner’s
     office turned over the cash to Jamesina. Jamesina used $4000
     from these funds to pay for funeral expenses. In September
     2011, Jamesina sent the remaining funds ($10,000) to
     Appellant, with the understanding that the funds would be made
     part of her father’s estate account, which was maintained by
     Attorney Frick. However, Appellant retained possession of those
     funds.

          On September 28, 2011, Appellant visited Attorney Frick at
     her office, and informed her that her services were no longer
     needed. Attorney Frick relinquished the $8000 cash and estate
     documents to Appellant. Appellant never hired another attorney.
     Consequently, Attorney Frick remained the counsel of record,
     and though she tried to contact Appellant to ensure she hired a
     new attorney, she was unable to reach Appellant.

            As part of her duties as administrator of her father’s
     estate, Appellant was provided with funds to be used to prepare
     the home for sale, and to be distributed amongst family
     members according to eventual court order.             These funds
     included the $8000 cash from Attorney Frick, and the $10,000
     from Jamesina. Additionally, Appellant withdrew $4600 from her
     father’s checking account, and deposited it into a new estate
     account with other smaller deposits, on which she was the only
     signatory. Appellant paid approximately $2,500 of those funds
     to a family friend, Colin Wesley Carr, to fix certain aspects of the
     decedent’s home. Additionally, she paid for Carr’s airfare from
     New York City, food while he stayed in the decedent’s home, and
     all supplies for the home repairs. She also made some utility


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       payments for the house, as detailed in the Commonwealth
       Exhibit 10.

              However, the remaining funds were not used in the
       administration of the estate, and were not saved for later
       distribution to the estate. Instead, Appellant mixed the estate
       funds with her personal account and used the funds for personal
       matters. As such, no funds remain for the administration of the
       estate or for distribution under any court order.

Trial Ct. Op., 2/21/17, at 4-6 (citations to notes of testimony omitted).

       At sentencing, Appellant presented Colin Carr, who, with respect to

restitution, testified to making repairs at the decedent’s home and being

paid for his services and expenses. See N.T., 4/25/16, 5-16. On June 20,

2016, the trial court sentenced Appellant to five years’ probation and

ordered her to pay restitution of $17,910 to the estate. 2 Appellant filed a

timely post-sentence motion, which the trial court denied on August 26,

2016. On September 6, 2016, Appellant filed this appeal.

       Appellant raises four issues for review:

       1. Whether the Commonwealth produced sufficient evidence to
          sustain a guilty verdict for Theft by Failure to Make Required
          Distribution of Funds Received?

       2. Whether the Commonwealth produced sufficient evidence to
          sustain a guilty verdict for Misapplication of Entrusted
          Property?

       3. Whether the verdict is against the weight of the evidence
          presented?

____________________________________________
2
  The sentence was imposed at Count 1 (theft by failure to make required
distribution of funds), with no further penalty at Count 2 (misapplication of
entrusted property).


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      4. Whether the trial court erred in ordering restitution where
         questions as to the composition and proper distribution of the
         estate were not first resolved in Orphan’s court?

Appellant’s Brief at 3.

                  Sufficiency and Weight of the Evidence

      In reviewing Appellant’s first three claims challenging the sufficiency

and weight of the evidence, we are mindful of the following:

             A claim challenging the sufficiency of the evidence is a
      question of law. Evidence will be deemed sufficient to support
      the verdict when it establishes each material element of the
      crime charged and the commission thereof by the accused,
      beyond a reasonable doubt. Where the evidence offered to
      support the verdict is in contradiction to the physical facts, in
      contravention to human experience and the laws of nature, then
      the evidence is insufficient as a matter of law. When reviewing a
      sufficiency claim the court is required to view the evidence in the
      light most favorable to the verdict winner giving the prosecution
      the benefit of all reasonable inferences to be drawn from the
      evidence.

             A motion for new trial on the grounds that the verdict is
      contrary to the weight of the evidence concedes that there is
      sufficient evidence to sustain the verdict. Thus, the trial court is
      under no obligation to view the evidence in the light most
      favorable to the verdict winner. An allegation that the verdict is
      against the weight of the evidence is addressed to the discretion
      of the trial court. 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.




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Commonwealth v. Widmer, 744 A.2d 745, 751-752 (Pa. 2000) (citations,

quotation marks, and footnote omitted).

      In her first two issues, Appellant argues that the evidence was

insufficient to support her two convictions.    At their essence, Appellant’s

arguments are that she lacked the intent necessary to support the

convictions.   In part, she blames Attorney Frick, who she dismissed, for

failing to provide her with proper guidance. With regard to theft by failure to

make a required distribution of funds received, Appellant additionally asserts

that the evidence was insufficient because she never failed to “make a

required payment or disposition.” Appellant’s Brief at 13, 17-18.

      The statute defining theft by failure to make a required distribution of

funds received provides:

      A person who obtains property upon agreement, or subject to a
      known legal obligation, to make specified payments or other
      disposition, whether from such property or its proceeds or from
      his own property to be reserved in equivalent amount, is guilty
      of theft if he intentionally deals with the property obtained as
      his own and fails to make the required payment or disposition.
      The foregoing applies notwithstanding that it may be impossible
      to identify particular property as belonging to the victim at the
      time of the failure of the actor to make the required payment or
      disposition.

18 Pa.C.S. § 3927(a) (emphasis added). The statute defining misapplication

of entrusted property states:

      A person commits an offense if he applies or disposes of
      property that has been entrusted to him as a fiduciary, or
      property of the government or of a financial institution, in a
      manner which he knows is unlawful and involves substantial



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      risk of loss or detriment to the owner of the property or to a
      person for whose benefit the property was entrusted.

18 Pa.C.S. § 4113 (emphasis added).

      Viewing the record in a light most favorable to the Commonwealth as

the verdict-winner, we find no merit to Appellant’s sufficiency claims, as the

evidence was sufficient for the jury to infer Appellant’s intent relative to both

crimes. Appellant admitted that she agreed to be the administrator of her

father’s estate and took sole         possession of approximately $22,600,

comprised of her father’s cash and bank account. N.T., 2/29/16, at 98-99.

She testified that she made a few checks payable to herself, and spent

money from the estate, including “about $3,000” on furniture for her

mother, and other expenditures for “maybe a couple other family members.”

N.T., 2/29/16, at 96, 100. She stated that the funds were “kind of all mixed

in together.”    Id.   She also testified that all of the cash and funds in the

bank account that had been in her possession were “all gone,” stating that

“[a]ll of it was used.” Id. at 102. This evidence was sufficient to support

Appellant’s convictions under both statutes.         See Commonwealth v.

Green, 162 A.3d 509, 523 (Pa. Super. 2017) (en banc) (finding evidence

sufficient when viewing the evidence in a light most favorable to the verdict

winner, and reiterating that we may not weigh the evidence and substitute

our judgment for the fact-finder who is free to believe all, part, or none of

the evidence).




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      We reject Appellant’s contention that she never failed to make a

distribution as disingenuous.   By dissipating the funds, Appellant made it

impossible for there to be a distribution of estate funds to her father’s heirs.

As the trial court stated:

      Regardless of Attorney Frick’s actions or the fact that a court
      order was not yet prepared for disbursement [of the estate funds
      to the heirs], Appellant had possession of those funds and was
      aware that these funds were to be used solely for the
      administration of her father’s estate. Nonetheless, Appellant
      used the funds for her own personal purposes, permanently
      depriving her father’s estate of those funds.

Trial Ct. Op., 2/21/17, at 9.

      The test for determining the sufficiency of the evidence is whether,

viewing the evidence in a light most favorable to the Commonwealth, and

drawing all inferences favorable to the Commonwealth, the jury could

reasonably have determined all elements of the crime to have been

established beyond a reasonable doubt.      Commonwealth v. Aulisio, 522

A.2d 1075 (Pa. 1987). On the record in this case, the jury could reasonably

have found that Appellant obtained the estate funds upon agreement and

subject to a known legal obligation to make disposition for the estate, but

intentionally dealt with the funds as her own and failed to make the required

disposition of the estate by depleting it — conduct sufficient to prove theft

by failure to make a required distribution of funds received. The jury also

reasonably could have found that Appellant disposed of funds that were

entrusted to her as estate administrator in a manner which she knew was


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unlawful and involved substantial risk of loss or detriment to the estate or its

beneficiaries — conduct sufficient to prove misapplication of entrusted

property.

       In her third issue, Appellant argues that her convictions were against

the weight of the evidence.3 Without citing any meaningful legal authority,

Appellant repeats her sufficiency argument and states that “the jury’s verdict

was against the weight of the evidence as both of the counts at issue

requires [sic] intent on the part of the defendant as well as an actual

unlawful taking of property.” Appellant’s Brief at 28. The Commonwealth

contends that Appellant has waived her weight claim because it is

insufficiently argued. Without reaching the question of waiver, we conclude

that Appellant’s weight claim fails for the reasons stated by the trial court in

its opinion. See Trial Ct. Op., 2/21/17, at 8-10 (recounting applicable legal

authority and relevant evidence from Appellant’s trial, and concluding that

“[t]he evidence presented during trial established Appellant’s guilt beyond a

reasonable doubt, and the Trial Court properly denied the motion for a new

trial as the verdict was not against the weight of the evidence”).




____________________________________________
3
   As required by Pa.R.Crim.P. 607, Appellant preserved this issue by raising
it with the trial court in her post-sentence motion.


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                                Restitution

      In her fourth issue, Appellant argues that the trial court erred by

awarding restitution when “the estate was not properly determined in a

proceeding in Orphan’s Court.” Appellant’s Brief at 28. She states:

      [T]he trial court could not properly determine restitution where
      the proper distribution and identities of the person to benefit
      from the estate were not correctly determined in Orphans’ court.
      It is Orphan’s court’s clear function to resolve such questions.

Id. at 30. Appellant additionally contends that by filing charges against her,

the Commonwealth “encourages individuals to file criminal charges in estate

matters to avoid the fees and complications of Orphan’s court.”   Id. at 15.

      The Commonwealth responds by emphasizing that Appellant was

convicted of theft, and that the Crimes Code, 18 Pa.C.S. § 1106, mandates

restitution where “property has been stolen or converted.” Commonwealth’s

Brief at 10-11, 26-28. Section 1106 provides, in relevant part:

      (a)   General rule.—Upon conviction for any crime wherein
            property has been stolen, converted or otherwise
            unlawfully obtained, or its value substantially decreased as
            a direct result of the crime, or wherein the victim suffered
            personal injury directly resulting from the crime, the
            offender shall be sentenced to make restitution in addition
            to the punishment prescribed therefor.

      (b)   Condition of probation or parole.—Whenever restitution
            has been ordered pursuant to subsection (a) and the
            offender has been placed on probation or parole, his
            compliance with such order may be made a condition of
            such probation or parole.

The Commonwealth argues that “Appellant fails to recognize that this issue

involves the sentence of restitution imposed for her criminal conviction for

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theft . . . and the orphans’ court division does not have jurisdiction over

criminal matters.” Commonwealth’s Brief at 27. We agree.

      This Court recently explained:

      In the context of criminal proceedings, an order of restitution is
      not simply an award of damages, but, rather, a sentence. An
      appeal from an order of restitution based upon a claim that a
      restitution order is unsupported by the record challenges the
      legality, rather than the discretionary aspects, of sentencing. The
      determination as to whether the trial court imposed an illegal
      sentence is a question of law; our standard of review in cases
      dealing with questions of law is plenary. . . .

      Restitution is a creature of statute and, without express
      legislative direction, a court is powerless to direct a defendant to
      make restitution as part of his sentence. Where that statutory
      authority exists, however, the imposition of restitution is vested
      within the sound discretion of the sentencing judge.

      . . . In the context of a criminal case, restitution may be imposed
      either as a direct sentence, 18 Pa.C.S. § 1106(a), or as a
      condition of probation, 42 Pa.C.S. § 9754. When imposed as a
      sentence, the injury to property or person for which restitution is
      ordered must directly result from the crime. However, when
      restitution is ordered as a condition of probation, the sentencing
      court is accorded the latitude to fashion probationary conditions
      designed to rehabilitate the defendant and provide some
      measure of redress to the victim.

Commonwealth v. Holmes, 155 A.3d 69, 78-79 (Pa. Super. 2017) (quoted

and internal citations omitted).    Consistent with Holmes, we discern no

abuse of discretion by the trial court in making restitution part of Appellant’s

sentence. As the Commonwealth points out, Appellant errs in treating the

restitution as an “award” made to the beneficiaries of the estate. Although

the restitution is to be paid to the estate, it is neither an award of damages

nor a distribution of estate assets; it is a sentence imposed on Appellant for

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her criminal conduct. Because an Orphans’ Court has no role in imposition

or enforcement of such a sentence, there was no error in imposing the

sentence without the Orphans’ Court’s involvement.

      The   restitution   amount     is   supported   by   the   record.      The

Commonwealth requested restitution of $21,910, consisting of the $10,000

found on the decedent’s person (net after $4,000 was paid for funeral

expenses), $8,000 cash recovered from the decedent’s home, and $3,910

taken from a bank account.       See N.T., 6/20/16, at 6.      Appellant testified

that she paid “$5,000 or more” for Mr. Carr to complete repairs to the home.

N.T., 2/29/16, at 89. Mr. Carr testified that Appellant paid him $2,500 cash

for various repairs that included plumbing, drywall, and yard work.         N.T.,

4/25/16, at 8. He stated that he “did a lot of work” that “took . . . about

two months to do”; that he “didn’t even pay for any food, she took care of

everything,” including tools and materials; and that because he was living in

New York City at the time, Appellant twice paid for his airfare. Id. at 4, 8-

14.   The trial court credited this testimony and therefore reduced the

restitution amount to $17,910.       Trial Ct. Op., 2/21/17, at 12.     The trial

record supports the court’s calculations. Accordingly, we find no error in the

trial court’s order of restitution to the decedent’s estate.

      For all of the reasons stated above, we affirm Appellant’s judgment of

sentence.

      Judgment of sentence affirmed.


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Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 10/12/2017




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