J-S63029-15


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA                     IN THE SUPERIOR COURT OF
                                                       PENNSYLVANIA
                            Appellee

                       v.

EDWARD HUMPHREY

                            Appellant                No. 1661 EDA 2015


            Appeal from the Judgment of Sentence February 7, 2014
             In the Court of Common Pleas of Northampton County
              Criminal Division at No(s): CP-48-CR-0002906-2013


BEFORE: DONOHUE, J., MUNDY, J., and MUSMANNO, J.

MEMORANDUM BY MUNDY, J.:                        FILED NOVEMBER 06, 2015

        Appellant, Edward Humphrey, appeals from the February 7, 2014

aggregate judgment of sentence of 32 to 64 months of incarceration,

followed by four years of probation, after a jury convicted him of home

improvement fraud and theft by deception.1 After careful review, we affirm.

        Appellant’s two-day jury trial commenced on January 6, 2014.     Mr.

Leeander Gray testified that on July 8, 2011, he entered into a contract with

Appellant for home repairs, including a new roof, in the amount of

$32,000.00. N.T., 1/6-7/14, at 15-18. Appellant advised Mr. Gray that the

home repairs could be completed in seven to ten days. Id. at 20. Mr. Gray

____________________________________________


1
    73 P.S. § 517.8(a)(2) and 18 Pa.C.S.A. § 3922(a)(1), respectively.
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gave Appellant $15,000.00, payable to Total Remodeling, toward the down

payment. Id. at 22. On July 19, 2011, Mr. Gray’s wife wrote a check for an

additional $10,000.00 to Total Remodeling, and gave the check to Appellant.

Id. at 25-26.   Within a week, Appellant began demolition at the Grays’

home.   Id.   On August 18, 2011, at Appellant’s request, the Grays paid

Appellant an additional $9,842.93, for a total of $34,842.93. Id. at 28-30.

Thereafter, Appellant ceased work on the Grays’ home. Mr. Gray testified,

“It was basically we still had a shell of the home, the electrical wasn’t done

yet, the drywall needed to be hung, the carpets needed to be put back down

and the painting.” Id. at 31. Although Mr. Gray tried repeatedly to contact

Appellant, he could not reach him and “gave up.”        Id.   Appellant never

returned to complete the work on the Grays’ home, nor did he remit a

refund to the Grays.    Id. at 33, 39, 68.    Mr. Gray had to hire another

contractor to complete the construction. Id. at 44. Consequently, Mr. Gray

contacted the police. Id. at 39.

     Mr. James Reilly testified to “meeting up” with Appellant in January or

February of 2011.    Id. at 74-75.   Appellant told Mr. Reilly that he could

teach him how to start a windows, roofing and siding business. Id. at 76.

At Appellant’s suggestion, Mr. Reilly started a company on March 15, 2011,

in Mr. Reilly’s name, but “set up” by Appellant. Id. at 81-83. The name of

the company was Total Remodeling of Northeast Pennsylvania.        Id. at 84.

Mr. Reilly explained that Appellant was “running the whole company,” and


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Mr. Reilly was trying to learn from Appellant.     Id. at 86-87, 91-92.    Mr.

Reilly testified as follows.

             [T]here was – there came a point where [Appellant]
             wasn’t showing up. He was disappearing for days
             and God knows what he was doing but then, you
             know, he just come back [sic] in like, you know,
             save the day like everything is fine. And everything
             wasn’t fine because, you know, people were looking
             for him and, you know, I didn’t know what to help
             [sic], to say to people and what was going on so—

Id. at 89. Mr. Reilly asked Appellant to remove Mr. Reilly’s name from the

Total Remodeling company and Appellant did so on June 20, 2011. Id. at

92.

      Ms. Jennifer Tillema testified to answering Appellant’s Craigslist ad for

secretarial employment in May of 2011. Id. at 128-130. Ms. Tillema began

working for Appellant and, within a few months, Appellant discussed with

Ms. Tillema “becoming an owner or member in the company.” Id. at 132.

The discussion occurred “towards the end when Mr. Reilly was not around

and we were trying to figure out if we could move forward and try to

complete the work.”        Id. at 133.     On August 2, 2011, Ms. Tillema

accompanied Appellant to the bank to open an account for the company.

Id. at 137-137. At Appellant’s direction, the bank account was opened in

Ms. Tillema’s name, with Appellant as a “signer.” Id. at 139, 152. By the

end of August, Ms. Tillema had “very limited access” to Appellant and “just

couldn’t get ahold of him regularly.” Id. at 141-142. Ms. Tillema began to

conduct “due diligence” and went to the Grays’ home, where she “didn’t

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even have to go into the home” to see that it was in poor condition. Id. at

142-143. At this point, Total Remodeling had “no money” to return to the

Grays, and Ms. Tillema left the Grays’ home “very upset.” Id. at 144. She

testified, “[t]heir home was destroyed.” Id. at 154.

       Pennsylvania State Trooper Michael Hodgskin testified to investigating

the Grays’ report of fraud.     After hearing from Mr. Gray at the police

barracks, Trooper Hodgskin went to the Grays’ home, where he “observed

the entire second floor basically just [un]inhabitable. It was basically under

construction, framing, partial roof, no insulation, exposed wiring.”   Id. at

160.   Trooper Hodgskin opined that “there was definitely something very

wrong … [t]his was not just a bad business transaction, this was beyond just

shoddy work … I didn’t think that they could live there.     I thought it was

uninhabitable.   I don’t know how they were staying there, to be honest.”

Id. at 161.    Trooper Hodgskin attempted to make contact with Appellant

“with no avail.”    Id. at 163.     Based on this investigation, a criminal

complaint was filed against Appellant.

       The Commonwealth then introduced the testimony of two individuals

who had prior dealings with Appellant: Mrs. Vernita Gilliam and Mr. Michael

McLoughlin.

       Mrs. Gilliam testified to being a longtime resident of Colorado. Id. at

181. In June 2010, she and her husband hired Appellant, who said he was

the owner of “Total Remodeling of Lakewood, Colorado” to paint their home.


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Id. at 182. After Appellant completed the job, the Gilliams hired Appellant

to finish their basement, add a sun porch and complete a patio. Id. at 183-

184.    On June 29, 2010, the Gilliams executed a written contract with

Appellant and Total Remodeling for the work and remitted a $25,000.00

down payment.     Id. at 188-191.      Appellant began the project in early

September 2010, after which Appellant requested an additional $24,183.50.

Id. at 193. Although the Gilliams paid Appellant a total of $49,183.50, the

work was never completed.      Id. at 194.    Mrs. Gilliam tried to contact

Appellant by email and telephone with no success. Id. Appellant’s workers

completed demolition but never began construction. Id. at 195, 200. The

Gilliams never received a refund and had to hire another contractor to finish

the work. Id. at 197.

       Mr. Michael McLoughlin testified to contacting Appellant and Total

Remodeling of Northeast Pennsylvania to complete a “flashing job.” Id. at

206.   According to Mr. McLoughlin, Appellant “walked around [the home]

and came back with other problems that he saw that should be rectified.”

Id. at 207.   Appellant suggested repairs to Mr. McLoughlin’s deck, cellar,

and home exterior.   Id. at 208.   Mr. McLoughlin executed a contract with

Appellant on May 12, 2011. Id. at 210. Mr. McLoughlin gave Appellant his

credit card information for payment.     Id. at 212.   Afterwards, the work

“sped up and slowed down,” but was never completed, and Mr. McLoughlin

had to hire another contractor to complete the work.        Id. at 213-216.


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Nonetheless, Appellant charged a total of $105,000.00 to Mr. McLoughlin’s

credit card.    Id. at 216.   Mr. McLoughlin never received a refund.    Id. at

217.

       Based on the above evidence, the jury found Appellant guilty of home

improvement fraud and theft by deception. On February 7, 2014, the trial

court sentenced Appellant to consecutive terms of 16 to 32 months of

incarceration on each conviction, followed by four years of probation.

       The trial court summarized a portion of the somewhat convoluted

procedural history that ensued as follows.

                     On February 11, 2014, [Appellant] filed a pro
               se Notice of Appeal.        On February 12, 2014,
               [Appellant’s] Trial Counsel, Joseph Yannuzzi, Esquire,
               filed a Petition for Reconsideration of Sentence.
               Attorney Yannuzzi subsequently withdrew from the
               case and [Appellant] was appointed Attorney Robert
               Sletvold, Esquire, to represent him. On February 17,
               2014, Attorney Sletvold filed Post-Sentence Motions
               on behalf of [Appellant] including a Motion for Arrest
               of Judgment, Motion for Judgment of Acquittal,
               Motion    for    a   New     Trial  and   Motion    to
               Modify/Reconsider Sentence. On March 3, 2014,
               [Appellant] filed a Motion for Post-Conviction
               Collateral Relief. This Court scheduled a hearing for
               April 3, 2014 to address the pending motions, the
               Notice of Appeal and the Motion for Post-Conviction
               Collateral Relief. At the hearing, Attorney Sletvold
               represented to this Court that the motion filed by
               Attorney Yannuzzi was filed to preserve [Appellant’s]
               appellate rights before he withdrew his appearance
               and Attorney Sletvold was appointed.         Attorney
               Sletvold agreed to withdraw the pending Appeal and
               asked this Court to proceed with Post-Sentence
               Motions. [Appellant’s initial appeal was discontinued
               by the Superior Court of Pennsylvania on April 28,
               2014 at Appellant’s request.]

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Trial Court Opinion and Order, 6/3/14, at 1-2.

      The trial court denied Appellant’s post-sentence motions on June 3,

2014. Appellant filed a timely notice of appeal on July 2, 2014. Both the

trial court and Appellant complied with Pennsylvania Rule of Appellate

Procedure 1925, with the trial court on August 14, 2014 filing its Rule

1925(a) statement, in which it adopted and incorporated its opinion and

order dated June 3, 2014.

      Appellant explained that his second appeal was delayed as follows.

                   After being granted two extensions of time to
            file [Appellant’s] brief on appeal, Attorney Sletvold
            failed to file a timely brief, and the Superior Court
            dismissed the appeal by Order of Court dated March
            9, 2015.

                  On March 1[8], 2015, [Appellant] filed a new
            PCRA Petition based on prior counsel’s failure to
            timely file a brief in his appeal. Attorney James
            Brose was appointed to represent [Appellant].

Appellant’s Brief at 7.

      On May 19, 2015, the trial court issued an order granting Appellant

permission to appeal nunc pro tunc.      Appellant filed the within appeal on

June 2, 2015. The parties again have complied with Rule 1925. On June

26, 2015, the trial court filed a Rule 1925(a) statement in which it reiterated

its adoption of its opinion and order dated June 3, 2014.

      On appeal, Appellant presents a single issue for our review.

            1.  Did the [trial c]ourt abuse its discretion by
            permitting the testimony, under Pa. Rule of Evidence


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                 404(b), of two witnesses who claimed to have had
                 similar experiences with the [A]ppellant as the
                 complainant in this case?

Id. at 4.

      We begin by noting our well-settled standard of review regarding

evidentiary issues.

                 The admissibility of evidence is at the discretion of
                 the trial court and only a showing of an abuse of that
                 discretion, and resulting prejudice, constitutes
                 reversible error. An abuse of discretion is not merely
                 an error of judgment, but is rather the overriding or
                 misapplication of the law, or the exercise of
                 judgment that is manifestly unreasonable, or the
                 result of bias, prejudice, ill-will or partiality, as
                 shown by the evidence of record. Furthermore, if in
                 reaching a conclusion the trial court over-rides or
                 misapplies the law, discretion is then abused and it is
                 the duty of the appellate court to correct the error.

Commonwealth v. Fischere, 70 A.3d 1270, 1275 (Pa. Super. 2013) (en

banc) (internal quotation marks and citations omitted), appeal denied, 83

A.3d 167 (Pa. 2013).

      Instantly, on December 23, 2013, the Commonwealth filed notice

pursuant to Pennsylvania Rule of Evidence 404(b), in which it stated that it

intended to “introduce evidence at trial consisting of evidence of other

crimes, wrongs or acts” of Appellant, and that such evidence would “be

offered     as    proof   of   motive,   opportunity,   intent,   preparation,   plan,

knowledge, identity, absence of mistake or accident or as otherwise

relevant.”        Notice Pursuant to Pennsylvania Rule of Evidence 404(b),

12/23/14.

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     This Court recently detailed our analysis under Rule 404(b) as follows.


           Rule 404. Character Evidence; Crimes or Other
           Acts

                                   ***

           (b) Crimes, Wrongs or Other Acts.

           (1) Prohibited Uses. Evidence   of a crime, wrong, or
           other act is not admissible     to prove a person’s
           character in order to show      that on a particular
           occasion the person acted in     accordance with the
           character.

           (2) Permitted Uses.         This evidence may be
           admissible for another purpose, such as proving
           motive, opportunity, intent, preparation, plan,
           knowledge, identity, absence of mistake, or lack of
           accident.    In a criminal case this evidence is
           admissible only if the probative value of the evidence
           outweighs its potential for unfair prejudice.

                                   ***

           Pa.R.E. 404(b)(1)-(2). “[E]vidence of prior crimes is
           not admissible for the sole purpose of demonstrating
           a criminal defendant’s propensity to commit crimes.”
           Commonwealth v. Melendez–Rodriguez, 856
           A.2d 1278, 1283 (Pa. Super. 2004). Nevertheless,
           “[e]vidence    may    be    admissible    in   certain
           circumstances where it is relevant for some other
           legitimate purpose and not utilized solely to blacken
           the defendant’s character.” Id. Specifically, other
           crimes evidence is admissible if offered for a non-
           propensity purpose, such as proof of an actor’s
           knowledge, plan, motive, identity, or absence of
           mistake or accident. Commonwealth v. Chmiel,
           585 Pa. 547, 889 A.2d 501 (2005). When offered for
           a legitimate purpose, evidence of prior crimes is
           admissible if its probative value outweighs its
           potential for unfair prejudice. Commonwealth v.
           Hairston, 624 Pa. 143, 84 A.3d 657 (2014), cert.


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          denied, ––– U.S. ––––, 135 S.Ct. 164, 190 L.Ed.2d
          118 (2014).

               When ruling upon the admissibility of evidence
               under the common plan exception, the trial
               court must first examine the details and
               surrounding circumstances of each criminal
               incident to assure that the evidence reveals
               criminal conduct which is distinctive and so
               nearly identical as to become the signature of
               the same perpetrator.      Relevant to such a
               finding will be the habits or patterns of action
               or conduct undertaken by the perpetrator to
               commit crime, as well as the time, place, and
               types of victims typically chosen by the
               perpetrator. Given this initial determination,
               the court is bound to engage in a careful
               balancing test to assure that the common plan
               evidence is not too remote in time to be
               probative. If the evidence reveals that the
               details of each criminal incident are nearly
               identical, the fact that the incidents are
               separated by a lapse of time will not likely
               prevent the offer of the evidence unless the
               time lapse is excessive. Finally, the trial court
               must assure that the probative value of the
               evidence is not outweighed by its potential
               prejudicial impact upon the trier of fact. To do
               so, the court must balance the potential
               prejudicial impact of the evidence with such
               factors as the degree of similarity established
               between the incidents of criminal conduct, the
               Commonwealth’s need to present evidence
               under the common plan exception, and the
               ability of the trial court to caution the jury
               concerning the proper use of such evidence by
               them in their deliberations.

          Commonwealth v. G.D.M., Sr., 926 A.2d 984, 987
          (Pa. Super. 2007), appeal denied, 596 Pa. 715, 944
          A.2d 756 (2008) (quoting Commonwealth v.
          Smith, 431 Pa. Super. 91, 635 A.2d 1086, 1089
          (1993)).


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Commonwealth v. Tyson, 119 A.3d 353, 358-359 (Pa. Super. 2015) (en

banc).

      We note for purposes of our analysis that Pennsylvania Rule of

Evidence 404(b), permitting the admission of evidence of prior bad acts for

limited purposes, is not restricted to evidence of crimes that have been

proven beyond a reasonable doubt in court; it encompasses both prior

crimes and prior wrongs and acts, the latter of which, by their nature, often

lack definitive proof.   Commonwealth v. Lockcuff, 813 A.2d 857 (Pa.

Super. 2002), appeal denied, 825 A.2d 638 (Pa. 2003).

      In this case, Appellant asserts that the trial court abused its discretion

when it admitted evidence “of two prior customers of [Appellant] because

they told a similar story to the victim in this case.” Appellant’s Brief at 12.

Appellant maintains that “there are likely hundreds, if not thousands, of

home contractor disputes with the same similarities ….”              Id. at 15.

Appellant states as follows.

            The “similarities” among the witnesses’ situations
            and the victim’s in this case are so general that they
            could be applied to almost every homeowner/home
            contractor dispute.     There is nothing distinctive
            about them and nothing that shows a “signature” of
            [Appellant]. Moreover, one of the three disputes
            arose in Colorado so the events cannot be said to be
            similar geographically and the fact that the disputes
            occurred over 2 years does not show a common
            pattern or scheme even though the Trial Court held
            as much.

Id.


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      Significantly, in the argument section of his brief, Appellant fails to cite

to the notes of testimony or otherwise detail his contention that the

admitted evidence was not admissible under Pennsylvania Rule of Evidence

404(b).    The Commonwealth, on the other hand, specifically counters as

follows.

                   The evidence and testimony of both Mrs.
            Gilliam and Mr. McLoughlin establishes a common
            scheme used by Appellant when he contracted with
            the Grays. The name of the companies and the
            contracts used by Appellant were similar to the
            contract with the Grays.      Additionally, Appellant
            convinced the homeowners to contract with him on
            additional remodeling around their homes, which
            Appellant knew he was not capable of completing.
            Each house was left in a state of disrepair only after
            a small amount of work was done, and none of the
            parties were able to get in contact with Appellant.
            Nevertheless, Appellant took money from Mr.
            McLoughlin, the Gilliams, and the Grays in the full
            amount of the contracts or greater, never completed
            the remodeling contracts, and never returned money
            for incomplete work.       At the time Appellant
            contracted with the Grays he had the intent to take
            their money, but had no intention of ever completing
            the remodeling work. Because similar situations had
            occurred with Mrs. Gilliam and Mr. McLoughlin, this
            evidence was properly admitted at trial to show
            intent, common scheme or plan, and the absence of
            mistake or accident.

Commonwealth Brief at 17-18.

      We agree with the Commonwealth. Likewise, the trial court concluded

that the Commonwealth’s evidence of Appellant’s prior bad acts was relevant

and offered the following detailed reasoning.




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                 This Court properly allowed evidence of
          [Appellant’s] prior bad acts through the testimony of
          Gilliam and McLoughlin. There was credible evidence
          presented at trial of [Appellant’s] prior dealings with
          customers who contracted with him for home repairs
          and paid [Appellant] large sums of money only to
          have [Appellant] start but never finish the work. []
          Gilliam testified at trial that she entered into a
          contract with [Appellant] in 2010 to make repairs to
          her home in Colorado.        Gilliam testified that at
          [Appellant’s] request, she paid twenty-five thousand
          dollars ($25,000.00) on July 21, 2010 and an
          additional twenty-four thousand one hundred eighty-
          three dollars and fifty cents ($24,183.50). The work
          was started but never completed at her home and
          her home was left in disrepair, forcing her to hire
          and pay another contractor to re-do the work.

                McLoughlin testified that he entered into a
          contract with [Appellant] in 2011 to make repairs to
          his home in Pennsylvania. McLoughlin testified he
          gave [Appellant] two credit card numbers to make
          charges when necessary with the amount charged to
          McLoughlin’s credit cards totaling one hundred and
          five thousand dollars ($105,000.00).        Further,
          McLoughlin testified the work was started but was
          never completed. McLoughlin’s money was never
          returned to him and he had to hire someone else to
          fix and finish the repairs.

                The credible evidence presented by Gilliam and
          McLoughlin tended to demonstrate a common plan or
          scheme by [Appellant] to defraud homeowners. The
          prior bad acts occurred within two (2) years of the
          crimes committed in the instant case and the
          similarities were apparent. Therefore, [Appellant’s]
          prior bad acts were properly admitted into evidence
          through Gilliam and McLoughlin’s testimony. The
          probative value of this evidence was not outweighed
          by unfair prejudice. The jury was given the following
          instruction regarding the prior bad act evidence:

                Ladies and gentlemen of the jury, you heard
                evidence tending to prove the defendant

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                  committed some improper conduct for which
                  he is not on trial.      I’m speaking of the
                  testimony of this last witness. This evidence
                  was before you for a limited purpose, tending
                  to show the absence of mistake, strategic
                  planning,     knowledge,     opportunity    or
                  preparation.    This evidence is not to be
                  considered by you in any other way other than
                  for the purpose I just stated. You must not
                  regard this evidence as showing this defendant
                  is a person of bad character or criminal
                  tendencies from which you may be inclined to
                  infer guilt … that same instruction applies to
                  the next witness, also.

                  (N.T., 1/7/14, pg. 204).

            All three victims contacted [Appellant] for home
            improvement repairs.       They each entered into a
            contract with [Appellant’s] company through
            [Appellant].       In   each instance,     [Appellant]
            represented himself as the owner of the company
            and directed the victims to remit payment to him.
            [Appellant] asked each victim for additional payment
            once the job was started, which each victim paid.
            [Appellant] began the work in each case, but did not
            complete it and did not return any money to any of
            the victims. The prior bad acts and the instant
            charges against [Appellant] were so similar in
            nature; this Court properly admitted this evidence.
            Moreover, any prejudice that could have resulted
            from the admission of the prior bad acts was cured
            by the limiting instruction given by the Court.

Trial Court Opinion, 6/3/14, at 11-13 (internal citations omitted).

      The trial court’s reasoning is consistent with both the certified record

and applicable legal authority.   We thus conclude the trial court did not

abuse its discretion in permitting the testimony of Mrs. Gilliam and Mr.




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McLoughlin.      See Fischere, supra.2             Accordingly, we affirm Appellant’s

judgment of sentence.

       Judgment of sentence affirmed.

Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 11/6/2015




____________________________________________


2
  To the extent Appellant argues that the Commonwealth’s evidence should
not have been admitted under Rule 403 because its prejudicial effect
outweighed its probative value, we reject that argument as well. Generally,
Rule 403 will exclude otherwise admissible evidence where the “probative
value is outweighed by a danger of one or more of the following: unfair
prejudice, confusing the issues, misleading the jury, undue delay, wasting
time, or needlessly presenting cumulative evidence.” Pa.R.E. 403. As noted
by both the parties and the trial court in this case, the jury was provided
with a curative instruction relative to Mrs. Gilliam and Mr. McLoughlin’s
testimony.



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