J-S22020-19


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

    COMMONWEALTH OF PENNSYLVANIA               :   IN THE SUPERIOR COURT OF
                                               :        PENNSYLVANIA
                                               :
                v.                             :
                                               :
                                               :
    ROBERT ANTHONY KOLOVICH                    :
                                               :
                       Appellant               :   No. 1077 MDA 2018

          Appeal from the Judgment of Sentence Entered June 4, 2018
    In the Court of Common Pleas of York County Criminal Division at No(s):
                           CP-67-CR-0007618-2014


BEFORE:      SHOGAN, J., DUBOW, J., and PELLEGRINI*, J.

MEMORANDUM BY DUBOW, J.:                              FILED OCTOBER 22, 2019

        Appellant, Robert Anthony Kolovich, appeals from the Judgment of

Sentence entered in the York County Court of Common Pleas following his

convictions of Theft by Deception and Theft by Failure to Make Required

Disposition of Funds.1 Appellant challenges the sufficiency of evidence

supporting his conviction of Theft by Deception. After careful review, we

affirm.

        We glean the following relevant facts and procedural history from the

certified record. Appellant was the owner of Lifetime Choice Windows, a

business that sold and installed windows and doors. From its inception,

Appellant financed his business using a cash advance company to purchase

materials and labor. Appellant repaid his loans with the cash advance company

____________________________________________


1   18 Pa.C.S. § 3922(a)(1) and 18 Pa.C.S. § 3927(a), respectively.
____________________________________
* Retired Senior Judge assigned to the Superior Court.
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by depositing funds that his customers paid to him into a general bank account

from which the cash advance company would withdraw the funds that

Appellant owed.

         Beginning in 2013, Appellant’s installation business began to experience

financial difficulties and Appellant was unable to pay his personal and business

debts. During the last quarter of 2013, the cash advance company refused to

advance Appellant any more funds because Appellant had multiple unpaid

loans.

         In June 2013, the Victim contacted Appellant to replace windows on his

house. On June 29, 2013, Appellant and the Victim entered into a contract for

the replacement of windows. Most significantly, on July 12, 2013, they entered

into an addendum to the contract, in which Appellant agreed to replace the

Victim’s front door and install a storm door and side lights. The Victim gave

Appellant $2,000 as a down payment for the front door, storm door, and side

lights. Appellant did not use the down payment to purchase the materials for

the front door, storm door, and side lights, but rather used the $2,000 to

repay his loans to the cash advance company.

         On October 27, 2013, Appellant installed the replacement windows, but

he did not replace the Victim’s front door, storm door, or side lights. Over the

next couple months, the Victim contacted Appellant numerous times regarding

the delay with the unfinished work. Appellant falsely blamed the door company

for the delay, even though he had never placed a valid order for the front


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door, storm door or side lights. In their last conversation on December 4,

2013, Appellant admitted that he lacked the funds to replace the Victim’s front

door, side door, and side lights and could not refund the $2,000 deposit due

to his financial problems.

        On July 28, 2014, the Victim filed a police report with James Boddington,

Chief of the Southern Regional Police Department. On December 15, 2014,

the Commonwealth filed a criminal information against Appellant, charging

him with Theft by Deception and Deceptive Business Practices.

        The court scheduled a pretrial conference on April 7, 2015, but after

Appellant failed to appear, it issued a bench warrant.2 On April 27, 2015,

Appellant filed a pretrial Motion to Quash, asserting that the Deceptive

Business     Practices    statute     is   unconstitutional.   The   Commonwealth

subsequently withdrew the Deceptive Business Practices charge.

        On August 15, 2015, the trial court granted the Commonwealth’s motion

to add a new count, Home Improvement Fraud.3 The court further stated it

would not enter a scheduling order due to Appellant’s involvement in a case

in a different county.


____________________________________________


2 In March, 2014, Appellant was incarcerated as a result of similar charges in
another county. He was released, and thus no longer in custody, at the time
that he failed to appear for the April 2015 pretrial conference.

3   73 P.S. § 517.8.




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        On August 31, 2017,4 a new attorney entered his appearance on behalf

of Appellant. On April 4, 2018, just before Appellant’s bench trial commenced,

the Commonwealth amended the Information to add an additional count, Theft

by Failure to Make Required Disposition of Funds. Appellant did not contest

the amendment.

        The trial court held a bench trial in which Appellant, the Victim, and

Chief Boddington testified. The trial court found Appellant guilty of Theft by

Deception and Theft by Failure to Make Required Disposition of Funds.5 The

court ordered a pre-sentence investigation report.

        On June 4, 2018, the court sentenced Appellant to, inter alia, time-

served to 23 months’ incarceration, followed by three years’ probation. 6

Appellant did not file a post-sentence motion.

        Appellant timely filed a Notice of Appeal. Both Appellant and the trial

court complied with Pa.R.A.P. 1925.

        On appeal, Appellant contends that the evidence is insufficient to sustain

his Theft by Deception conviction. Appellant’s Br. at 4, 15-18. He asserts that

the evidence does not establish that he intentionally obtained or withheld the

Victim’s $2,000 by creating or reinforcing a false impression. Id. He avers that
____________________________________________


4 The Court of Common Pleas docket indicated that no proceedings occurred
in this case for two years—from the August 15, 2015 hearing until August 22,
2017.

5   The court found Appellant not guilty of Home Improvement Fraud.

6 The sentencing court merged the Theft by Failure to Make Required
Disposition of Funds conviction with the Theft by Deception conviction.

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because he performed significant work on the contract and his cash flow

problems began after he entered into his contract with the Victim, the

evidence demonstrates that he intended to perform his part of the contract.

Id. He attributes his failure to replace the Victim’s door or to refund $2,000

to the Victim on poor business practices. Id. at 18.

      “A claim challenging the sufficiency of the evidence is a question of

law.” Commonwealth v. Widmer, 744 A.2d 745, 751 (Pa. 2000). “[O]ur

standard of review is de novo and our scope of review is plenary.”

Commonwealth v. Hutchinson, 164 A.3d 494, 497 (Pa. Super. 2017)

(citation omitted).

      In reviewing a sufficiency challenge, we determine “whether the

evidence at trial, and all reasonable inferences derived therefrom, when

viewed in the light most favorable to the Commonwealth as verdict winner,

are sufficient to establish all elements of the offense beyond a reasonable

doubt.” Commonwealth v. May, 887 A.2d 750, 753 (Pa. 2005) (citation

omitted). “Further, a conviction may be sustained wholly on circumstantial

evidence, and the trier of fact—while passing on the credibility of the witnesses

and the weight of the evidence—is free to believe all, part, or none of the

evidence.” Commonwealth v. Miller, 172 A.3d 632, 640 (Pa. Super. 2017)

(citation omitted). “In conducting this review, the appellate court may not

weigh the evidence and substitute its judgment for the fact-finder.” Id.




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      Pursuant to Section 3922(a), a person is guilty of Theft by Deception if

“he intentionally obtains or withholds property of another by deception.” 18

Pa.C.S. § 3922(a). A person deceives if he intentionally “creates or reinforces

a false impression, including false impressions as to law, value, intention or

other state of mind[.]” 18 Pa.C.S. § 3922(a)(1). However, the factfinder may

not infer that a defendant intended to deceive the victim solely from the fact

that the defendant failed to perform the acts he promised to perform. Id. The

factfinder must infer from other facts that the defendant “never intended to

perform his part of the contract.” Commonwealth v. Gallo, 373 A.2d 1109,

1111 (Pa. 1977); Commonwealth v. Bentley, 448 A.2d 628, 631 (Pa.

Super. 1982).

      Here, the factfinder reviewed all the evidence before concluding that

Appellant “never intended to perform his part of the contract.” In its 1925(a)

Statement, the trial court concluded that Appellant intentionally obtained and

withheld the $2,000 by deception. Supplemental 1925(a) Statement, dated

8/14/19, at 4. In particular, the trial court first found that Appellant obtained

the $2,000 by deception because Appellant, knowing that he had outstanding

debts to the cash advance company, created the false impression that he

would use the $2,000 to purchase materials for the job when Appellant

intended to use the $2,000 to repay his debt to the cash advance company.

      The trial court found [the Victim’s] testimony credible and
      concluded that Appellant intentionally created a false impression
      as to what he intended to do with [the Victim’s] money. The trial
      court found that Appellant knew that his undisclosed “cash flow

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      problem” and “stacking” problem would impede his ability to
      install [the Victim’s] door and anticipated that “[the cash advance
      company would eat] up part of [the $2,000].” Appellant
      intentionally reinforced a false impression by representing
      to [the Victim] that the money [he] received from [the
      Victim] would be expressly used to purchase materials
      even though he knew the money would be immediately
      absorbed by the cash advance company to which [he] was
      indebted.

Id. (emphasis added, citations omitted, and modifications in original). The

trial court further found that Appellant withheld the $2,000 by deception

when he falsely told the victim that it was the door company’s fault that he

could not complete the installation when, in fact, it was Appellant’s misuse of

the Victim’s funds that caused Appellant to be unable to complete the

installation. It stated:

      [f]urther, when [the Victim] inquired on multiple occasions about
      the status of the door installation, Appellant intentionally
      reinforced a false impression by telling him that the delay was due
      to the door company’s neglect, when in fact, it was due to
      Appellant’s conduct. Appellant never placed a valid order for the
      door.

Id.

      We agree with the trial court’s apt analysis. Viewing all the facts

in a light most favorable to the Commonwealth as the verdict winner,

we conclude that the evidence, and all reasonable inferences derived

therefrom, is sufficient to support the trial court’s determination that

Appellant never intended to complete the contract. He obtained and

withheld the Victim’s $2,000 by creating and reinforcing the false

impression that he would purchase and install the Victim’s front door,


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storm door, and side lights when he had used the $2,000 for other

purposes. Gallo, supra at 1111; Bentley, supra at 631.7 Accordingly,

Appellant is not entitled to relief on his claim that his Theft by Deception

conviction cannot be sustained.

       Judgment of Sentence affirmed.


Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 10/22/2019




____________________________________________


7 In Commonwealth v. Bentley, we concluded that the evidence was
insufficient to establish that the appellant never intended to perform his part
of the contract to install a porch, and noted the appellant’s use of proceeds
for unrelated purposes was not barred by the home improvement contract.
448 A.2d 628, 632 (Pa. Super. 1982). The instant case is distinguishable. In
Bentley, the appellant informed the complainant that he was using the
deposit for unrelated purposes. Id. at 629. Additionally, the parties agreed,
at least in part, that the appellant’s failure to complete the contract was
partially due to unexpected problems, including the type of concrete block to
be used and the width of the porch. Id. at 630


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