J-A28020-16
                               2017 PA Super 321



COMMONWEALTH OF PENNSYLVANIA,                        IN THE SUPERIOR COURT OF
                                                           PENNSYLVANIA
       Appellee

                     v.

JOHN JAMES SUCCI,

       Appellant                                         No. 480 EDA 2015


           Appeal from the Judgment of Sentence January 16, 2015
                In the Court of Common Pleas of Bucks County
             Criminal Division at No(s): CP-09-CR-0002732-2014


BEFORE: PANELLA, SHOGAN, and PLATT,* JJ.

OPINION BY SHOGAN, J.:                                FILED OCTOBER 12, 2017

       John Succi, (“Appellant”) appeals from the judgment of sentence

entered    January   16,   2015,   following   his    conviction   by   a   jury   on

December 12, 2014, of two counts of home improvement fraud, twelve

counts of deceptive or fraudulent business practices, twelve counts of theft

by deception and one count of insurance fraud.1 We affirm.

       The trial court set forth the following factual history:

             The testimony elicited over the lengthy trial established
       that [Appellant] owned and operated a construction company
       located in Yardley, Bucks County. Deborah Parker resided in a
       single family home located in Doylestown, Bucks County. In
       June of 2005, Mrs. Parker entered into a home improvement
       contract with [Appellant]. Pursuant to that contract and an
       addendum to the contract, [Appellant] agreed to make a number

*   Retired Senior Judge assigned to the Superior Court.

1 73 P.S. § 517.8(a)(2), 18 Pa.C.S. § 4107(a)(2), 18 Pa.C.S. § 3922(a)(1),
and 18 Pa.C.S. § 4117(b)(4), respectively.
J-A28020-16


     of internal and external improvements to Mrs. Parker’s home.
     The project was to be completed in four weeks. Three months
     after construction began, the project had still not been
     completed. Due to [Appellant’s] poor work, his routine absences
     from the project and his repeated demands for money in
     advance, Mrs. Parker contacted other contractors who, after
     inspecting the property, advised her that the work [Appellant]
     had done was so inferior, it would have to be completely redone.
     [Appellant] ultimately abandoned the project leaving asbestos
     and other debris littered around the property. When he stopped
     work, major portions of the work were incomplete and the work
     that had been completed was substandard. After abandoning
     the project, [Appellant] placed a mechanic’s lien on Mrs. Parker’s
     property. At the time of trial in December of 2014, much of the
     original project had still not been completed and the remaining
     defective work had still not been repaired.

            In August of 2005, about the same time [Appellant]
     abandoned Mrs. Parker’s project, [Appellant] contracted with
     Richard     Schulang    to    perform     construction   work    on
     Mr. Schulang’s home in Jamison, Bucks County. Under the
     terms of the contract, [Appellant] agreed to finish the basement
     of the home which was to include framing, insulation, electric,
     installation of a drop ceiling, construction of a cover for a radon
     pipe with an access panel and construction of a mechanical
     closet for $28,500. He also agreed to enlarge an existing deck
     on the home and replace the old decking with composite wood
     for $6,500. This project was supposed to be completed within
     three weeks.

            By February of 2006, after numerous delays in
     construction, [Appellant] stopped work.          At the time he
     abandoned the project, much of the work had not been
     completed although he had received all but $1,250 of the
     contract price. In addition, much of the work that had been
     completed was substandard. The deck [Appellant] built could
     not pass inspection and was torn down. The composite wood
     decking used was improperly installed, voiding its warranty. In
     the basement, the electrical work did not pass inspection. Many
     of the outlet holes were too large and needed to be fixed. In
     addition, various materials Mr. Schulang had paid for were not
     delivered, including ground fault interrupters, door handles, deck
     railings and tile. A permit Mr. Schulang had paid for was never



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     obtained. In May of 2006, [Appellant] placed a mechanic’s lien
     on Mr. Schulang’s property.

           In August of 2006, a few months after [Appellant] stopped
     working on the Schulang project, [Appellant] contracted with
     Brian Hahn to add a basement to Mr. Hahn’s home in Lower
     Makefield Township, Bucks County. Construction of the
     basement entailed removal of the back deck, lifting the
     structure, excavating the basement, laying a new foundation and
     lowering the structure onto the new foundation. [Appellant]
     agreed to perform the work for $45,000.

            Although Mr. Hahn had paid [Appellant] a total of $52,600,
     an amount in excess of the original contract, [Appellant’s] work
     was seriously deficient. [Appellant] initially failed to obtain the
     necessary permits and work was sporadic. The work site was
     scattered with debris. The foundation was inadequate and in
     danger of collapse. Because the house was not set on the
     foundation properly, the windows in the home would not open,
     tiles popped, walls cracked, kitchen cabinets pulled away from
     the walls and the floor sloped.

           During a discussion of [Appellant’s] demand for more
     money and his failure to obtain the necessary inspections,
     Mr. Hahn asked if he needed to “protect” himself. [Appellant]
     responded, “If you go legal on me, I’ll bury you. I’ll bury you
     financially.” Mr. Hahn thereafter contacted an attorney and
     removed [Appellant] from the project. Eventually, Mr. Hahn was
     forced to expend over $160,000 to obtain the necessary permits
     and inspections and to bring the project into conformity with the
     original architectural plans and engineering specifications.

            On April 3, 2007, [Appellant] entered into an agreement
     with Monica Cienuch and her husband, Adam, to rebuild the
     kitchen in their home in Levittown, Bucks County.            The
     agreement called for [Appellant] to remove the existing
     sunroom, lay a foundation, erect the framing for the kitchen and
     install basic electric and plumbing.[2] In May of 2007,
     [Appellant] and the [Cienuches] agreed that [Appellant] would


2  We note that the Cienuches’ last name is spelled variously as Cienuch in
the trial court opinion and as Cienuich in the notes of testimony. For the
sake of clarity we shall use the trial court’s spelling, Cienuch.


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     also finish the interior of the kitchen. The entire project was to
     cost $36,000.

           On May 16, 2007, [Appellant] notified Mrs. Cienuch that
     the construction permits had been approved. On May 21, 2007,
     demolition began. On May 24, 2007, Mrs. Cienuch was advised
     that, although an application had been made, the permits had
     not yet been obtained. Mrs. Cienuch took matters in her own
     hands and was able to obtain the necessary permits on June 1,
     2007.

           Thereafter   work     proceeded   sporadically   and    the
     [Cienuches] soon began to observe problems. With regard to
     the foundation, [Appellant] failed to deliver the foundation
     material that had been agreed upon, using demolition debris
     instead of high-quality stone. The foundation laid by [Appellant]
     did not pass inspection. There were also significant problems
     with the framing. Although they had notified [Appellant] of the
     defective framing and [Appellant] had assured them problems
     with the framing would be corrected, the issues with regard to
     the framing remained unaddressed. Despite having received
     $30,500 of the total contract price of $36,000, [Appellant] had
     only completed the foundation, framing and basic plumbing. The
     cabinets and countertops that Mr. and Mrs. Cienuch had paid
     $7,000 in advance to [Appellant] were never ordered or
     delivered.

            As a result of the issues regarding delays, materials and
     inferior workmanship, the [Cienuches] retained an attorney,
     terminated the contract and demanded a refund of $20,000. In
     response, [Appellant] stated that the [Cienuches] were
     “welcome to go to court,” adding that he was going to “lock
     [them] in the litigation for years.” The [Cienuches] thereafter
     retained a new contractor to repair and complete the project.
     The additional cost for labor alone was $24,800.

           In September of 2007, [Appellant] entered into an
     agreement with Anthony Succi and his parents to build a special
     needs home for Mr. Succi’s son on the parents’ property in
     Philadelphia for $210,000.     During the project, the price
     increased based on [Appellant’s] representations that additional
     money was needed to address unexpected problems. Mr. Succi
     paid [Appellant] over $263,900. The project was thereafter shut



                                   -4-
J-A28020-16


     down by the Philadelphia Department of Licenses and Inspection
     for non-compliance and lack of permits.

          Mr. Succi described the status of the project at the time
     [Appellant] was shut down as “a shell.” He further stated,

           [Appellant] had constructed a foundation of concrete
           that was out of level. It had a 7-foot basement that
           leaked at least a foot of water at a minimum. It had
           a roof that was put on that leaked profusely. It had
           windows partially put in. And the whole outside was
           just pure plywood that started rotting because of the
           weather and inside had two by four’s.

     The Philadelphia Department of Licenses and Inspections
     required Mr. Succi to demolish the house for health and safety
     reasons. Demolition cost Mr. Succi an additional $15,000.

           On June 4, 2008, [Appellant] contracted with Stuart
     Abramson to build an addition to Mr. Abramson’s residence in
     Buckingham Township, Bucks County. [Appellant] agreed to add
     a room, enlarge the garage and another area of the house,
     construct a patio and install stucco. The total cost of the project
     was $142,000. [Appellant] also agreed to a specific payment
     schedule that was tied to the completion of specific items of
     work.    However, after construction commenced, [Appellant]
     frequently requested money ahead of the payment schedule,
     claiming that, without the money, he could not order materials.
     By January of 2009, Mr. Abramson had paid [Appellant]
     $120,000. Mr. Abramson had paid for but did not receive
     drywall, electric, the shingle roof, windows, stucco, heating and
     air conditioning, a fireplace, hardwood flooring and tile work.

            In January of 2009, the Township inspected the project
     and issued a stop work order. Much of the work [Appellant] had
     done needed to be removed due to code violations.
     Mr. Abramson explained the resultant condition of the addition
     as follows:

           Now I was left with a bare frame. There was nothing
           inside. No drywall, minimal insulation, concrete
           floors that were poured incorrectly. They made me
           bring in a carpenter and take down support



                                    -5-
J-A28020-16


           structures from all the ceilings, because they weren’t
           to code.

     Mr. Abramson paid other contractors $70,000 to complete the
     projects. [Appellant] did not reimburse Mr. Abramson for any of
     the work not performed or materials not delivered.

            In September of 2008, while Mr. Abramson’s project was
     still underway, [Appellant] entered into a preliminary contract
     with Andrew Spicer to build an addition to his home in
     Pipersville, Bucks County.      Once architectural plans were
     completed, a final contract was executed in October of 2008.
     Under the terms of the final contract, the total cost of the project
     was $97,000. Work was to be completed in about six months.
     Pursuant to the final contract, Mr. Spicer paid [Appellant]
     $21,550 in deposits for materials and [Appellant] began
     construction. By Thanksgiving, [Appellant] had dug a hole for a
     foundation. By the end of November, early December of 2008,
     work on the foundation had begun but had not been completed.
     Thereafter, all work stopped until March of 2009.

           In a separate agreement, entered into at the end of 2008
     or the beginning of 2009, [Appellant] agreed to tile the kitchen
     floor that was adjacent to the planned addition for a price of
     $4,500 or $5,000. [Appellant] was paid and work commenced.

           In March of 2009, [Appellant] resumed work on the
     addition. At that time the foundation was poured and framing
     was completed. At this stage of the project, [Appellant] began to
     demand payments ahead of the payment schedule.              While
     Mr. Spicer made at least one payment ahead of schedule, he
     began to refuse to pay for work until that work was in fact
     completed in accordance with the contract.

           In May of 2009, the project was terminated by agreement.
     By that time, Mr. Spicer had paid [Appellant] $67,000 for work
     that was incomplete, defective or not in built with the specified
     material. Specifically, the architectural plans called for large
     wooden beams, called “LVL” beams, to be used in the framing.
     Although those beams were initially installed by [Appellant], he
     later replaced them with scrap wood. Numerous tiles installed
     by [Appellant] in the kitchen of Mr. Spicer’s home thereafter
     “popped” while others cracked. Pieces of the old porcelain tile
     floor were dumped in the backyard. [Appellant’s] substandard


                                    -6-
J-A28020-16


     work caused the ceiling of Mr. Spicer’s home to crack and the
     porches to sink. The Spicers were unable to correct all of the
     problems without demolishing the work and starting over. The
     Spicers spent approximately $85,000 to finish the project “as
     best [they] could.”

            In September of 2009, [Appellant] agreed to build an
     addition onto the home of Jeffery and Anette Goldstein in
     Richboro, Bucks County, for the use of Mrs. Goldstein’s mother,
     Erica Baratz, for $80,000. [Appellant] agreed to demolish an
     existing garage and bathroom and to construct a complete
     residential structure with a brick patio.

           During construction, [Appellant] left a wall to the home
     open to the outside, with only a tarp covering certain areas.
     Other problems also arose.         The project failed multiple
     inspections, damage was caused to original property and
     [Appellant] began to significantly deviate from the construction
     plans. Although work initially began in a timely manner, the
     project soon became months behind schedule and [Appellant]
     began to continuously demand[] money from Mrs. Baratz. When
     Mrs. Baratz exhausted her funds, [Appellant] told her to charge
     the work to her credit cards. Ultimately, [Appellant] received
     approximately $120,000 from the Goldsteins and Mrs. Baratz.
     When Mr. Goldstein voiced complaints, [Appellant] warned him
     that he had “political power” and threatened to make
     Mr. Goldstein’s life “miserable.”

           In July or August of 2010, [Appellant] walked off the job.
     At that time, [Appellant] had completed only eighty percent of
     the work outlined in the contract and had failed to order or
     deliver items that had been paid for in advance, including $5,000
     worth of cabinets and two fireplaces. [Appellant] did not finish
     constructing the walls, used regular concrete instead of brick on
     the patio and had installed inferior air conditioning and heating
     units. The Goldsteins and Mrs. Baratz were financially unable to
     complete the project. They received estimates that the heating
     and air conditioning alone would cost $15,000 to $20,000, an
     amount they could not afford. They did expend an additional
     $5,000 to complete the necessary electrical and plumbing work
     and for a fireplace.

          In January of 2010, [Appellant] agreed to build a home in
     Margate, New Jersey for Larry Feinman, a resident of Holland,


                                   -7-
J-A28020-16


     Bucks County.     Initially, due to their personal relationship,
     [Appellant] and Mr. Feinman proceeded without a formal
     contract.    Mr. Feinman gave [Appellant] blueprints for
     construction of a three-story home and [Appellant] agreed to
     build the home for $425,000. The price was later raised to
     $470,000. After the project ran behind schedule, Mr. Feinman
     insisted [on] executing a formal agreement. That agreement
     was entered into in June or July of 2010 and set forth an agreed
     price of $470,000.

           By the end of 2010, Mr. Feinman had paid [Appellant]
     more than the contract price. Despite that fact, [Appellant], who
     had “been off the job for a while,” appeared to have abandoned
     the project, leaving a substantial amount of the project
     incomplete. [Appellant] never built permanent stairways to the
     upper floors and had not installed any of the plumbing fixtures.
     [Appellant]    never    delivered   materials     and    appliances
     Mr. Feinman had paid for, including air conditioner compressors,
     kitchen appliances, kitchen cabinets, tile, insulation and drywall.
     The total cost of these items was at least $19,000. Although
     [Appellant] did install a water heater, he did not install a
     “tankless” water heater system as specified in the contract. As a
     result of all of these deficiencies, Mr. Feinman was forced to
     expend more than $300,000 to complete the home.

           On May 20, 2010 after a few months of negotiation,
     [Appellant] contracted with Dr. Sherri Landes, a resident of
     lvyland, Bucks County, to build a home on her property in
     Margate, New Jersey. [Appellant] agreed to construct the home
     in accordance with the architectural plans for $395,300.
     Although Dr. Landes initially intended to finance the construction
     with a construction loan, [Appellant] persuaded her to borrow on
     her existing home equity line of credit. A construction loan
     would have required bank inspections to determine that the work
     had been properly completed before funds were released to pay
     for that work. Initially, Dr. Landes followed the practice that
     would have been in place if she had obtained a construction
     loan, i.e. inspection of the work to determine if the work had
     been properly completed before funds were released to pay for
     that work. However, [Appellant] eventually began to ask for
     money in advance of the payment schedule for materials.
     Dr. Landes obtained a second home equity line of credit for
     $500,000 to keep the project moving.



                                    -8-
J-A28020-16


           Dr. Landes paid [Appellant] in advance for many of the
     materials to be used in the project, i.e., $30,000 for windows,
     $5,500 for plumbing fixtures, $15,000 for tile, $1,400 for granite
     countertops, $6,500 for railings and $19,375 for external
     concrete pillars.   [Appellant] never purchased these items.
     Dr. Landes ultimately had to purchase these items directly from
     the suppliers to complete the project.          Dr. Landes paid
     [Appellant] and his suppliers a total of $604,465.17 on a home
     she had contracted to have built for $395,300.

           In March of 2011, [Appellant] asked for an additional
     $55,500 to complete the job. At the end of March, Dr. Landes
     asked [Appellant] to provide an accounting of project
     expenditures.     [Appellant] provided her with a list of
     expenditures that included payments for [Appellant]’s personal
     expenses, payments to suppliers that had not been made,
     payments for labor and materials for work that had not been
     done, and other unauthorized expenditures. Many line items
     were left blank. No receipts were provided.

           Work ceased in April of 2011. Dr. Landes described the
     condition of the property at that time as follows:

          It contained a tile roof with no underlayment,
          meaning no flashing, nothing to prevent it from
          leaking. The tiles that were on there were not the
          tiles that he showed me initially. They ended up to
          be Northern roof tiles which I paid for, again, as I
          mentioned. And they all had to be removed. And I
          had to pay an extra [$] 25,000 for the roof to be
          fixed so that it wouldn’t leak. There was a thin coat
          of stucco on the outside that was placed before the
          windows were put in. I questioned that but, you
          know, [Appellant] said, “You are not a builder. You
          don’t know anything.” But I had built a house before
          and I knew stucco shouldn’t be placed before
          windows. So that had to be removed. It was a thin
          coat that would have leaked. And there were no
          flashings. So ultimately I had to pay another – I
          have the figures. I think it was another 17,500 or
          maybe even more for stucco to properly be
          constructed.

          Q. Had you already paid [Appellant] for that stucco?


                                   -9-
J-A28020-16


          A. Yes. I paid for everything on the contract. And so
          in addition to the roof and the framing, there was
          nothing inside of the house. There were no walls,
          there was no plumbing, there was no interior,
          nothing.     The only thing that was, there was a
          decorative marble fireplace surround that I had
          purchased. [Appellant] called me one day and said,
          “We are ready for your fireplace surround,” so I
          thought that walls were up. I thought the drywall
          was up and interior was finished. And when I drive
          down from Pennsylvania to New Jersey to actually
          see the house, I saw the fireplace surround, but no
          walls. And when the house was finally built, it had to
          be retrofitted because it was just a decorative thing
          put up with no walls. There was really nothing else
          there. There were balconies and they had to be
          resurfaced and redone because they weren’t
          constructed properly. And nothing else that I had
          paid for was present.
                                  * * *
          The exterior concrete finishes were not done which
          included a driveway, sidewalk and that kind of thing.
          HVAC installations, not done; electrical work, not
          done; plumbing installations, not done; drywall
          interior finishes, not done; all interior and exterior
          trim finished, decks and rails only half done.
          Because I did have decking, but I had no windows
          and I had no interior, obviously. So this includes
          interior trim, doors, windows, railings, base board
          column, hardwood flooring, not done; marble tile
          flooring in bathrooms not done; marble tile, all the
          interior work, nothing done; all walls and ceilings
          painted, not done; kitchen fixtures, not done.

            Dr. Landes paid an additional $400,000 to finish building
     the house, spending in total, one million dollars to build a
     $400,000 home. [Appellant] never reimbursed Dr. Landes for
     work not performed or for materials not delivered. Instead, he
     filed a mechanic’s lien against her property for $150,000. When
     a potential customer, Phil Karali, called Dr. Landes to inquire
     about [Appellant’s] job performance, she told him that she paid
     [Appellant] $604,000 for a home and got a shell, a roof and a
     framed structure.      [Appellant] sued her for defamation of
     character and tortious interference with a contract.


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J-A28020-16


           In November of 2011, [Appellant] contracted with Cindy
     and Dale Ross to remodel the first floor of their residence in
     Levittown, Bucks County. [Appellant] agreed to completely gut
     the first floor, rebuild the bathroom and kitchen and install
     drywall and new heater for $94,500. [Appellant] told the Rosses
     that they would have to move out of their residence by
     January 9, 2012 but that they would be able to return on
     March 8, 2012. In May of that year, a cease work order was
     issued by the local authorities due to the fact that [Appellant]
     had not obtained the proper permits. When the project was shut
     down, the Rosses terminated their contract.

            Although the Rosses had paid [Appellant] $86,583 of the
     $94,500 contract price, [Appellant] had completed only 25 to 35
     percent of the work specified in the agreement. Mrs. Ross
     testified that she was left with “a gutted empty house, no walls,
     no plumbing, no electric.” The Rosses never receive[d] all of the
     materials they had paid for in advance, including granite counter
     tops and insulation. [Appellant] never reimbursed Mrs. Ross for
     work not finished or materials not delivered. He told Mrs. Ross
     that he would complete the project if she paid him an additional
     $35,000. In order to enjoy the use of their home, the Rosses
     were forced to pay another contractor $200,000 to correct and
     complete the renovation.

            In October of 2013, [Appellant] contracted with
     George Monti to rebuild a roof on a commercial property located
     in Tullytown, Bucks County for $28,875. This contract was later
     increased by $6,575 at [Appellant’s] suggestion to add plywood
     to the “decking.” After Mr. Monti agreed to the addendum,
     [Appellant] began to regularly request more money in advance
     for materials. The project, which [Appellant] represented could
     be completed in a few days, was still not completed as of April of
     the following year. In the interim, extensive water damage was
     caused to the interior of the building by “leaks” in the incomplete
     roof. Mr. Monti hired another roofer to complete the project for
     $50,000. In addition, Mr. Monti suffered a substantial financial
     loss due to the damage to his real and personal property caused
     by water damage.

          In August of 2013, shortly before [Appellant] contracted
     with Mr. Monti to rebuild his roof, [Appellant] obtained a
     commercial    insurance    policy  from    Erie    Insurance.
     Timothy Pantano,    a   salesman   and    customer    service


                                   - 11 -
J-A28020-16


      representative for Erie Insurance, sold the policy to [Appellant].
      During the application process, [Appellant] made several
      misrepresentations. He told Mr. Pantano that he had not filed
      for bankruptcy in the past five years, that he did not subcontract
      any work and that he did not accept jobs that only involved new
      roofing or reroofing. [Appellant] later signed the application,
      certifying that the information he had given was true and
      complete.

Trial Court Opinion, 5/22/17, at 2–16 (citations omitted).

      Following the trial, the jury found Appellant guilty of two counts of

home improvement fraud, twelve counts of deceptive or fraudulent business

practices, twelve counts of theft by deception and one count of insurance

fraud and the trial court sentenced him to fourteen to twenty-eight years of

imprisonment. Appellant eventually was found to be an eligible offender for

purposes of the Recidivism Risk Reduction Incentive Act (“RRRI”) and his

aggregate RRRI minimum sentence was reduced to eleven and a half years.

      Appellant filed his notice of appeal on February 17, 2015, and following

a convoluted appeals process,3 the case is now before this Court.

      Appellant raises the following issues for our review:

      I. Were fourteen of [Appellant’s] convictions barred by the
      statute of limitations because those counts were discrete
      offenses, separate and apart from the timely charged offenses?

      II. Did the Court of Common Pleas of Bucks County lack
      jurisdiction over crimes committed in Philadelphia County and/or
      the State of New Jersey?




3  The trial court’s supplemental opinion sets forth the events and filings that
ultimately resulted in Appellant’s current appeal.        Trial Court Opinion,
5/22/17, at 1–2.


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J-A28020-16


      III. Was the Court of Common Pleas of Bucks County not a
      proper venue for crimes committed in Philadelphia County and
      /or the State of New Jersey?

      IV. Did the trial court impose an illegal and unconstitutional
      sentence when the court sentenced [Appellant] with the intent to
      impose a life sentence?

      V. Did the trial court err when the court concluded [Appellant]
      waived his appellate rights because he did not obtain trial
      transcripts for the court’s review?4

Appellant’s Brief at 5.

      Turning to Appellant’s first issue, he argues that fourteen of his

convictions, i.e., the counts involving Mrs. Parker, Mr. Shulang, the Hahns,

the Cienuches, Mr. Succi, Mr. Abramson and Mr. Spicer, are barred by the

statute of limitations. Id. at 11–21. Appellant asserts that the trial court

erred when it found his crimes constituted a continuing course of conduct for

purposes of the running of the statute of limitations. Id. at 13. He further

argues that the legislature did not intend to treat theft by deception and

deceptive business practices as continuing offenses for purposes of tolling

the five-year statute of limitations.    Id. at 16.

      “A question regarding the application of the statute of limitations is a

question of law.” Commonwealth v. Riding, 68 A.3d 990, 993 (Pa. Super.

2013).   Thus, “our standard of review is de novo and scope of review is

plenary.”   Commonwealth v. Vega-Reyes, 131 A.3d 61, 63 (Pa. Super.

2016). “Statutes of limitations are of course liberally construed in favor of

4   Appellant’s fifth issue is moot as this Court eventually obtained the
transcripts and is now addressing the merits of his appeal.


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the defendant and against the Commonwealth.”              Commonwealth v.

Cardonick, 292 A.2d 402, 407 (Pa. 1972) (citations omitted).

      Appellant’s convictions for theft by deception and deceptive or

fraudulent business practices are subject to a five-year statute of limitations.

42 Pa.C.S. § 5552(b)(1).      In this case, prosecution was commenced on

February 10, 2014, when a warrant was issued for Appellant’s arrest.

Commonwealth v. McSloy, 751 A.2d 666, 668 (Pa. Super. 2000); 42

Pa.C.S. § 5552(e). Thus, barring any applicable exceptions, the statute of

limitations will act to bar prosecution for any crimes committed before

February 10, 2009. A crime has been committed when every element of the

crime occurs, “or, if a legislative purpose to prohibit a continuing course of

conduct plainly appears, at the time when the course of conduct or the

complicity of the defendant therein is terminated.” 42 Pa.C.S. § 5552(d).

      Relying on the continuing-course-of-conduct language in 42 Pa.C.S.

§ 5552(d), the trial court found that Appellant’s actions were part of an

ongoing course of conduct and that the statute of limitations had not run on

any of the crimes for which Appellant was convicted.       Trial Court Opinion,

5/22/17, at 18. Specifically, the court found that the evidence established

that Appellant “engaged in Deceptive or Fraudulent Business Practices and

Theft by Deception throughout 2005, 2006, 2007, 2008, 2009, 2010, 2011,

2012, and 2013 and continued into 2014.” Id. at 19.




                                     - 14 -
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      Appellant asserts that his crimes were intermittent, did not constitute

a single, continuous act, and failed to show a repetitive pattern of behavior.

Appellant’s Brief at 14. Specifically, Appellant argues that the cases involved

“different persons, in different locations, with different types of construction

projects, and with different allegations of how the relationship with Appellant

deteriorated.” Id. at 15. We agree.

      Preliminarily, we note that 42 Pa.C.S. § 5552(d) has been applied

primarily to conspiracy cases.    Commonwealth v. Volk, 444 A.2d 1182,

1187 (Pa. Super. 1982) (finding that conspiracy is a continuing offense and

“any conspiracy that is renewed by repetitions may be prosecuted at any

time within two years after the commission of the last offense”).       Section

5552(d) has also been utilized for cases involving kidnapping as a continuing

offense and receiving stolen property.    See Commonwealth v. Stewart,

544 A.2d 1384, 1388 (Pa. Super. 1988) (applying Section 5552(d) to a case

involving kidnapping and finding the conviction was not barred by the

statute of limitations because the crime included not only the initial

kidnapping, which had occurred outside the statute of limitations, but also

included the continuing conduct of keeping the child outside of the

custodian’s dominion); Commonwealth v. Farrar, 413 A.2d 1094,             1098

(Pa. Super. 1979) (finding that receiving and retaining stolen property is a

continuing offense for as long as the perpetrator retains the property for

purposes of determining when the statute of limitations will run).



                                     - 15 -
J-A28020-16


      A review of relevant jurisprudence does not reveal any case law in

which a court extended the statute of limitations as set forth in Section

5552(d) to an action for theft by deception or fraudulent business practices

involving different victims over an extended period. See Commonwealth

v. Fisher, 682 A.2d 811, 818 (Pa. Super. 1996) (finding that where

defendant was convicted for theft by deception pursuant to a scheme where

he advertised and sold plots of land to a number of victims, the five-year

statute of limitations began to run on the date of the defendant’s last

deception   for   each   victim   of   each     individual   count);   Kissinger   v.

Commonwealth, 488 A.2d 401, 403–404, n. 8 (Pa. Cmwlth. 1985)5

(finding that for purposes of 42 Pa.C.S. § 5552(d), Appellant’s failure to

connect to the township sewer system, despite two notices that he had 60

days to do so, over a year apart, was not a continuing crime and Appellant

could be convicted twice for failing to comply with both notices).

      We further note that we are unable to find a legislative purpose

prohibiting a continuing course of conduct “plainly appears” in either 18

Pa.C.S. § 3922 (Theft by Deception) or 18 Pa.C.S. § 4107 (Deceptive or

Fraudulent Business Practices). We are aware that pursuant to 18 Pa.C.S.

§ 3903(c)(3) and 18 Pa.C.S. § 4107(a.1)(2), the amount of money involved

in the proscribed acts may be aggregated to determine the grade of offenses


5   We note that we are not bound by the decision in Kissinger v.
Commonwealth, 488 A.2d 401 (Pa. Cmwlth. 1985), but cite it as
persuasive authority.


                                       - 16 -
J-A28020-16


as long as the crimes are committed as part of one scheme or course of

conduct. However, it is well established that statutes of limitation must be

construed against the Commonwealth and in favor of the appellant.

Cardonick, 292 A.2d at 407. Given the above, we are unable to conclude

that the required plain purpose is evidenced by a corollary statute allowing

for aggregation of value for purposes of sentencing.          Thus, we are

constrained to agree with Appellant that the continuing-conduct language

found in Section 5552(d) does not act to extend the statute of limitations in

this case.

      Section 5552(d) does not apply to extend the statute of limitations in

this case, however, 42 Pa.C.S. § 5552(c)(1) allows prosecution for an

otherwise time-barred offense for “[a]ny offense a material element of which

is either fraud or a breach of a fiduciary obligation within one year after

discovery of the offense by an aggrieved party. . . but in no case shall this

paragraph extend the period of limitations otherwise applicable for more

than three years.” Id.

      Relying on Section 5552(c)(1), the trial court alternatively held that

any crime which occurred in the eight years prior to the commencement of

prosecution on February 10, 2014, was timely prosecuted.      The trial court

found that although the victims in this case may have been aware that

Appellant was deficient in his performance as a contractor, his intent to

deceive and defraud them was unknown until after the charges were filed



                                   - 17 -
J-A28020-16


against Appellant on February 10, 2014.       Trial Court Opinion, 5/22/17, at

22.   Specifically, the trial court found that “[t]he victims did not have actual

knowledge that a criminal offense had been committed until investigators

were able to piece together a pattern of behavior sufficient to establish

fraudulent intent as opposed to mere sloppy business practices.” Id.

      Thus, the trial court found that pursuant to 42 Pa.C.S. § 5552(c)(1),

Appellant “was therefore timely prosecuted for any offenses occurring within

eight years of the commission of the crime.” Id. We agree. Pursuant to

Section 5552(c)(1), discovery of the fraud “is not satisfied by mere

suspicion, it requires acquisition of knowledge that a penal statute has been

violated.”   Commonwealth v. McSloy, 751 A.2d 666, 669 (Pa. Super.

2000) (finding fraud was not known until coconspirator testified to the fraud

before a grand jury).    See also, Commonwealth v. Hawkins, 439 A.2d

748, 750 (Pa. Super. 1982) (finding that although there were events that

could have indicated fraud prior to actual discovery, discovery of fraud

required actual knowledge of the fraud).

      In his brief to this Court, Appellant concedes that Section 5552(c)(1) is

the exception the “legislature intended as the mechanism to toll the statute

of limitations for a crime like Deceptive Business Practices.”       Appellant’s

Brief at 18.    Appellant argues, however, that this rule does not apply

because Appellant’s victims were aware that Appellant failed to finish the

work before their relationships with Appellant ended. Id. at 18. We reject



                                     - 18 -
J-A28020-16


such a claim. The mere fact that Appellant failed to complete the contracted

for work on the victims’ homes did not equate with knowledge that Appellant

had engaged in fraudulent and deceptive practices.

     As discussed supra, Appellant’s fraud was discovered on the day the

warrant was issued for his arrest, February 10, 2014.        Pursuant to 42

Pa.C.S. § 5552(c)(1), the statute of limitations for Appellant’s crimes is

extended for an additional three years; thus Appellant was timely prosecuted

for any crime occurring after February 10, 2006.

     We now turn to the individual victims and charged counts to determine

whether the statute of limitations bars prosecution. Appellant asserts that

offenses arising from his contacts with Mrs. Parker, Mr. Shulang, the Hahns,

the Cienuches, Mr. Succi, Mr. Abramson and Mr. Spicer are all barred by the

five-year statute of limitations because the crimes took place before

February 10, 2009, which was five years from the day on which the warrant

for Appellant’s arrest was issued.    Appellant’s Brief at 12.   However, as

discussed above, pursuant to Section 5552(c)(1), the statute of limitations

in this case extends back eight years, through February 10, 2006.

     After a review of the facts in this case, we find that the Appellant’s

crimes against Mrs. Parker, Mr. Shulang, the Hahns, the Cienuches,

Mr. Succi, Mr. Abramson and Mr. Spicer occurred or continued beyond

February 10, 2006, and therefore, were timely prosecuted. Turning first to

Mrs. Parker, Appellant and Mrs. Parker entered into a contract in June of



                                     - 19 -
J-A28020-16


2005 and Appellant was on her property for approximately ninety days.

N.T., 12/5/14, at 135. However, after he stopped working on her property,

Appellant continued his fraudulent conduct by placing a mechanic’s lien on

Mrs. Parker’s property.        Id. at 147.      Indeed, the suit relating to the

mechanic’s lien continued well into 2008, thus bringing it within the eight-

year statute of limitations.    Id.; Trial Exhibit C-8, Deposition of Appellant,

5/30/08. See Commonwealth v. Fisher, 682 A.2d 811, 818 (Pa. Super.

1996) (“Thus we conclude that the prosecution on each count must

commence within five years of [appellant’s] last deception relating to that

count.”).

      Next, Mr. Shulang testified that Appellant began working on his

property    in   August   of   2005   and   was   terminated   approximately   on

February 8, 2006. N.T., 12/5/14, at 97. Appellant, however, continued his

deceptive and fraudulent practices by placing a mechanic’s lien on

Mr. Shulang’s property in May of 2006, claiming that he was owed more

money for various work he allegedly had done on Mr. Shulang’s home,

bringing Appellant’s crimes against Mr. Shulang within the eight-year statute

of limitations. Id. at 100. See Fisher, 682 A.2d at 818.

      Appellant’s convictions for his actions against the Hahns and the

Cienuchs also occurred within the required statutory period.           Mr. Hahn

testified that he and Appellant entered into a contract for work on his home

in August of 2006, within the eight-year statute of limitations.           N.T.,



                                       - 20 -
J-A28020-16


12/5/14, at 172–173.       Similarly, Mrs. Cienuch testified at trial that she

entered into a contract with Appellant on April 3, 2007, again within the

required eight-year window. N.T., 12/8/14, at 7.

      The convictions relating to Appellant’s crimes against Mr. Succi,

Mr. Abramson, and Mr. Spicer also occurred within the relevant statute of

limitations. We note Mr. Succi hired Appellant to construct a second home

on his property for his son in 2007, within the statute of limitations. N.T.,

12/5/14, at 47. Appellant began working for Mr. Abramson in 2008 and the

township issued a stop work order for Mr. Abramson’s property on February

10, 2009, which falls within the time required by the statute of limitations.

N.T., 12/8/14, at 49–50. We find Appellant was timely prosecuted for the

crimes Mr. Abramson.        As to Mr. Spicer, it is undisputed that Appellant

continued to work for Mr. Spicer until May of 2009. N.T., 12/9/14, at 42.

Thus, it is clear that Appellant’s criminal conduct toward Mr. Spicer

continued after February of 2006, and the statute of limitations does not bar

prosecution and conviction for those crimes.           Appellant was timely

prosecuted for all offenses in the instant case.

      In support of his second issue, Appellant argues that the Court of

Common Pleas of Bucks County lacked jurisdiction over Appellant for the

crimes committed in Philadelphia County or the State of New Jersey.

Appellant’s Brief at 5. This Court set forth the governing standards relating

to jurisdiction in a criminal case:



                                      - 21 -
J-A28020-16


      Subject matter jurisdiction speaks to the competency of a court
      to hear and adjudicate the type of controversy presented.
      Jurisdiction is purely a question of law; the appellate standard of
      review is de novo and the scope of review is plenary.
      Controversies stemming from violations of the Crimes Code are
      entrusted to the original jurisdiction of the courts of common
      pleas for resolution. All jurists within that tier of the unified
      judicial system are competent to hear and resolve a matter
      arising out of the Crimes Code.

Commonwealth v. Elia, 83 A.3d 254, 265 (Pa. Super. 2013) (citations

omitted).

      Appellant argues that jurisdiction was not proper for the convictions

for theft by deception or fraudulent business practices that arose out of

construction in Philadelphia County relating to Mr. Succi and New Jersey

relating to Dr. Landes and Mr. Feinman. As to the New Jersey victims,

Appellant concedes that the trial court had jurisdiction over the counts for

theft by deception against both victims. Appellant’s Brief at 23. He asserts,

however, that the trial court did not have jurisdiction over the counts for

deceptive or fraudulent business practices. Id. Appellant also argues that

the trial court did not have jurisdiction over the crimes against Mr. Succi.6

      Appellant’s claim is without merit.      Our Supreme Court has held

unequivocally that “all courts of common pleas have statewide subject


6  Appellant failed to raise the issue of alleged improper jurisdiction over the
crimes against Mr. Succi in his 1925(b) Statement. Failure to raise an issue
in a 1925(b) Statement results in waiver; jurisdiction, however, is not
waivable and may be raised at any time, and sua sponte. Commonwealth
v. Little, 314 A.2d 270, 272 (Pa. 1974) (“An objection to lack of subject-
matter jurisdiction can never be waived; it may be raised at any stage in the
proceedings by the parties or by a court on its own motion.”).


                                     - 22 -
J-A28020-16


matter jurisdiction in all cases arising under the Crimes Code.”          See

Commonwealth v. Bethea, 828 A.2d 1066, 1074 (Pa. 2003).                Subject

matter jurisdiction references the court’s power to adjudicate while venue

addresses the convenience of the locality. Id. Although the terms are often

used interchangeably, venue cannot exist without subject matter jurisdiction

and they are distinct. Id. at 1075. “Rules of venue recognize the propriety

of imposing geographic limitations on the exercise of jurisdiction. Venue in a

criminal action properly belongs in the place where the crime occurred.” Id.

Indeed, although Appellant purports to argue jurisdiction was improper, his

argument relates to the propriety of the venue, not jurisdiction. 7 The trial

court properly exercised its jurisdiction in this matter.

      In his third issue, Appellant contends that Bucks County was not the

proper venue for the crimes committed in Philadelphia County against

Mr. Succi or in the State of New Jersey against Dr. Landes and Mr. Feinman.

Appellant’s Brief at 5.    In his omnibus pretrial motion, Appellant sought

dismissal of the counts allegedly arising in Philadelphia alone.     Omnibus

Pretrial Motion, 11/25/14, at ¶¶ 5–9. Appellant did not seek dismissal of the

New Jersey cases based upon improper venue before the trial court, thus,

his argument is waived on appeal. Commonwealth v. Yockey, 158 A.3d




7  Appellant relies on case law that was mired in the confusion relating to the
interchangeability between venue and jurisdiction, which Bethea, 828 A.2d
1066, addressed.


                                     - 23 -
J-A28020-16


1246, 1259 (Pa. Super. 2017) (“issues not raised in the lower court are

waived and cannot be raised for the first time on appeal.”).

      Moreover, Appellant filed a motion to dismiss for lack of proper venue;

however, dismissal is not the proper remedy for an allegedly improper of

venue.      Commonwealth v. Gross, 101 A.3d 28, 36 (Pa. 2014) (“[N]o

provision in our criminal procedure rules permits dismissal as a remedy for

improper venue”).       Instead of dismissal, “our rules repeatedly speak to

transferring cases to another judicial district when improper venue is

determined.”      Id.   “As venue is predominantly a procedural matter, and

pertains to the locality most convenient to the proper disposition of a

matter, dismissal is inappropriate and unjust where a court merely finds

another judicial district provides a more appropriate forum.” Id. (citations

omitted). Indeed, “the purpose of venue, apart from the manner in which it

relates to subject matter jurisdiction, is a matter of convenience to the

litigants.”   Commonwealth v. Miskovitch, 64 A.3d 672, 689 (Pa. Super.

2013).      Further, as in this case, where jurisdiction is proper, venue is

primarily a matter of procedure, and Appellant is required to show he was

prejudiced because the trial was held in Bucks County rather than another

location.     Id. (“Thus even assuming venue was improper, Appellant must

demonstrate prejudice in order to be entitled to relief at least . . . where the

choice of venue is purely procedural and not jurisdictional in nature.).

Appellant has failed to make the necessary showing of prejudice. Appellant’s



                                     - 24 -
J-A28020-16


claim that the trial court erred when it denied his motion to dismiss for lack

of venue is without merit.

      In support of his fourth issue, Appellant asserts that the trial court

imposed an illegal and unconstitutional sentence when it sentenced him

“with the intent to impose a life sentence.”          Appellant’s Brief at 5.

Preliminarily, we note that Appellant failed to raise a challenge to the

constitutionality of his sentence in his Pa.R.A.P. 1925(b) statement. 8   It is

well established that an issue not raised in a 1925(b) statement is waived

for purposes of appeal. Pa.R.A.P. 1925(b)(4)(vii).     Appellant asserts, with

no significant analysis, that his claim of an Eighth Amendment violation

constitutes a challenge to the legality of his sentence and that challenge

cannot be waived. Appellant’s Brief at 25. Indeed, although a challenge to

the discretionary aspects of sentencing is subject to waiver, the legality of a

sentence cannot be waived.     Commonwealth v. Schutzues, 54 A.3d 86,

91 (Pa. Super. 2012). Appellant argues that his sentence is illegal because

it is an unconstitutional violation of the Eighth Amendment’s prohibition

against cruel and unusual punishment. Appellant’s Brief at 25–27. Whether

Appellant’s challenge implicates the legality of his sentence presents a pure

question of law. Commonwealth v. Foster, 17 A.3d 332, 340 n. 13 (Pa.

2011).   Our standard of review is de novo and our scope of review is

plenary. Id.

8   Appellant also failed to file a post-sentence motion as required by
Pa.R.Crim.P. 720 or a Pa.R.A.P. 2119 statement with this Court.


                                    - 25 -
J-A28020-16


      Contrary to Appellant’s claim that an alleged Eighth Amendment

violation constitutes a challenge to the legality of the sentence, there is no

bright line rule establishing whether a challenge to a sentence, constitutional

or otherwise, implicates the legal or discretionary aspects of that sentence.

See Commonwealth v. Spruill, 80 A.3d 453, 460–461 (Pa. 2013) (noting

the Supreme Court’s “experience with claims allegedly implicating sentence

legality has not always been smooth” and noting the complexities involved in

the issue).   However, this Court has stated that “the term ‘illegal sentence’

is a term of art that our courts apply narrowly, to a relatively small class of

cases.” Commonwealth v. Robinson, 931 A.2d 15, 21 (Pa. Super. 2007).

      “Legality of sentence issues occur generally either: (1) when a trial

court’s traditional authority to use discretion in the act of sentencing is

somehow affected and/or (2) when the sentence imposed is patently

inconsistent with the sentencing parameter set forth by the General

Assembly.” Schutzues, 54 A.3d at 92 (quoting Commonwealth v. Foster,

17 A.3d 332, 342 (Pa. 2011)).          Most other challenges implicate the

discretionary aspects of a sentence, “even though the claim may involve a

legal question, a patently obvious mathematical error, or an issue of

constitutional dimension.” Robinson, 931 A.2d at 21 (finding that a claim

of vindictiveness by the trial court when sentencing a defendant does not

implicate the legality of the sentence).        Indeed, where, as here, an

appellant argues that the sentencing court exercised its discretion in a way



                                    - 26 -
J-A28020-16


that was harsh, unreasonable, or motivated by impermissible factors such as

personal animus or revenge, those contentions “are the very hallmarks of a

claim that implicates the discretionary aspects of a sentence.” Id.

      In this case, Appellant argues that his sentence is excessive in that the

trial court “expressed an intent to impose a sentence that would keep

Appellant incarcerated for the remainder of his natural life,” as evidenced by

a statement the trial court made during Appellant’s sentencing. Appellant’s

Brief at 27. This assertion of bad intent on the part of the trial court does

not implicate the legality of Appellant’s sentence.   Robinson, 931 A.2d at

21. Instead, it is a challenge to the discretionary aspect of his sentence, a

challenge which Appellant has waived due to his failure to include the issue

in his 1925(b) Statement and post-sentencing motion.

      Even assuming, arguendo, that Appellant did not waive his Eighth

Amendment’s argument, he would not be due any relief.              “The Eighth

Amendment does not require strict proportionality between the crime

committed and the sentence imposed; rather, it forbids only extreme

sentences that are grossly disproportionate to the crime.” Commonwealth

v. Baker, 78 A.3d 1044, 1047 (Pa. 2013).          In order to determine if a

sentence runs afoul of the Eighth Amendment, this Court will apply a three-

pronged test:

      [A] court’s proportionality analysis under the Eighth Amendment
      should be guided by objective criteria, including (i) the gravity of
      the offense and the harshness of the penalty; (ii) the sentences
      imposed on other criminals in the same jurisdiction; and (iii) the


                                     - 27 -
J-A28020-16


        sentences imposed for commission of the same crime in other
        jurisdictions.

Id.   (quoting Commonwealth v. Spells, 612 A.2d 458, 462 (Pa. Super.

1992) (en banc)). Although there are three prongs to the test, this Court “is

not obligated to reach the second and third prongs of the Spells test unless

a threshold comparison of the crime committed and the sentence imposed

leads to an interference of gross disproportionality.”         Baker, 78 A.3d at

1047.
        Appellant does not, and indeed, could not, argue that the trial court’s

sentence exceeded any statutory maximum; rather he posits that his

sentence     is   “grossly   disproportionate    to   his   non-violent   offenses,”

particularly where he “had no prior criminal history and had a prior record

score of zero.”    Appellant’s Brief at 27.     In the instant case, the sentence

imposed by the trial court was within the sentencing guidelines, save the

sentence imposed for insurance fraud,9 and none of the sentences exceeded

any statutory maximums. The trial court found no mitigating factors in this

case and noted Appellant has failed to show any remorse for his crimes.

N.T., 1/16/15, at 61, 66.

        Moreover, the fact that Appellant was a first-time offender and his

crimes were of a non-violent nature does not minimize the seriousness of

the offenses, the amount of money at issue, or the impact on his victims.

9   The trial court explained that it was exceeding the guidelines and
sentencing Appellant to the statutory maximum because he fraudulently
used the insurance company’s good name, and lead his victims to believe
they would be made whole if there were any problems, when he knew that
was not the case. N.T., 1/16/15, at 72–73.


                                       - 28 -
J-A28020-16


Indeed, Appellant defrauded his victims out of hundreds of thousands of

dollars.   In addition, Appellant threatened and intimidated his victims if they

sought any sort of remedy, legal or otherwise.         Appellant used the legal

system to continue to defraud his victims by placing mechanic’s liens on

several victims’ homes and suing another for libel. He declared bankruptcy

in order to render himself essentially judgment proof.        Appellant’s actions

have financially devastated multiple victims.        Further, as the trial court

noted, “It is very clear based on [Appellant’s] bankruptcy, his removal and

dissipation of assets, that restitution is not a real possibility to these people.”

N.T. 1/16/15, at 74.

      Given the facts of this case, and the manner in which Appellant

defrauded and exploited his victims, we find Appellant cannot satisfy the first

prong of the proportionality test; thus, we need not analyze further.

Appellant has failed to show that his sentence is illegal and violative of the

Eighth Amendment. Appellant’s argument lacks merit, and he is entitled to

no relief on that ground.

      Judgment of sentence affirmed.

Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 10/12/2017


                                      - 29 -
