J-A11007-14


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA                   IN THE SUPERIOR COURT OF
                                                     PENNSYLVANIA
                          Appellee

                     v.

DAVID L. PATTON

                          Appellant                No. 1973 WDA 2012


          Appeal from the Judgment of Sentence of November 6, 2012
               In the Court of Common Pleas of Clarion County
                    Criminal Division at No(s): 543 CR 2010


COMMONWEALTH OF PENNSYLVANIA,                  IN THE SUPERIOR COURT OF
                                                     PENNSYLVANIA
                          Appellee

                     v.

DAVID L. PATTON,

                          Appellant                No. 1974 WDA 2012


          Appeal from the Judgment of Sentence of November 6, 2012
               In the Court of Common Pleas of Clarion County
            Criminal Division at No(s): 543 CR 2010, 148 CR 2011

BEFORE: GANTMAN, P.J., FORD ELLIOTT, P.J.E. and OLSON, J.

MEMORANDUM BY OLSON, J.:                      FILED SEPTEMBER 19, 2014

         Appellant, David L. Patton, appeals from the judgment of sentence

entered on November 6, 2012. We affirm.

         In 2010, Appellant was arrested and charged with over 100 counts of

theft.     The Commonwealth premised all of the theft counts upon the

allegation that Appellant had abused a general durable power of attorney,
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which named him the agent for his 86-year-old aunt, Betty Wetzel.

Specifically, the Commonwealth alleged, Appellant had abused the power of

attorney by stealing over $200,000.00 from Ms. Wetzel’s accounts and using

the money for Appellant’s own benefit.1

       The general durable power of attorney at issue here was executed on

January 11, 2007, in Venango County, Pennsylvania, and provided, in

relevant part:


                                         NOTICE

         The purpose of this power of attorney is to give the person
         you designate (your “agent”) broad powers to handle your
         property, which may include powers to sell or otherwise
         dispose of any real or personal property without advance
         notice to you or approval by you.

         This power of attorney does not impose a duty on your
         agent to exercise granted powers, but when powers are
         exercised, your agent must use due care to act for your
         benefit and in accordance with this power of attorney.

         Your agent may exercise the powers given here throughout
         your lifetime, even after you become incapacitated, unless
____________________________________________


1
  We note that on February 11, 2011, the Commonwealth filed a second
information against Appellant, wherein the Commonwealth charged
Appellant with additional theft counts. However, as was true with the earlier
information, the theft counts in the second information were based upon the
allegation that Appellant had abused the power of attorney over Ms. Wetzel.
Therefore, the trial court consolidated the two cases by order entered May 2,
2011. Trial Court Order, 5/2/11, at 1. For ease of discussion, we will omit
any reference to either the pre-trial proceedings or the pre-trial motions at
the second case number.




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       you expressly limit the duration of these powers or you
       revoke these powers or a court acting on your behalf
       terminates your agent’s authority.

       Your agent must keep your funds separate from your
       agent’s funds.

       A court can take away the powers of your agent if it finds
       your agent is not acting properly.

       The powers and duties of an agent under a power of
       attorney are explained more fully in 20 Pa.C.S. Ch. 56.

       If there is anything about this form that you do not
       understand, you should ask a lawyer of your own choosing
       to explain it to you.

       I have read or had explained to me this notice and I
       understand its contents.

                            (signature)________________
                            Betty M. Wetzel, Principal


                  REVOCATION AND APPOINTMENT OF
                       POWER OF ATTORNEY

       KNOW ALL MEN BY THESE PRESENTS, that I, Betty M.
       Wetzel . . . do hereby . . . make, constitute and appoint
       [Appellant] . . . my true and lawful agent, for me and in my
       name and on my behalf.

       To draw checks against my account in any bank, trust
       company or savings and loan association in which I have
       any monies deposited, for all or any part of the money now
       or hereafter deposited in said bank, trust company or
       savings and loan association, or which may stand to my
       credit on the books thereof; to endorse notes, checks,
       drafts, and bills of exchange, including, but not limited to,
       checks of the United States Government, the Department of
       Health and Welfare of the United States, and any check
       payable to me issued by the Commonwealth of
       Pennsylvania, which may require my endorsement for the


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       deposit as cash, or for collection in any bank in which I may
       have money deposited;

                                    ...

       To pay, compromise and settle all debts which I may owe or
       which I may hereafter contract;

       To make such contracts as may be necessary for my
       maintenance and support, and to employ such persons as
       nurses, housekeepers or for such other purposes as may be
       necessary to care for me and to provide for my needs,
       medical care and welfare, and to do all other things
       necessary or required to look after and care for me, and to
       pay out of my funds and estate all debts, accounts and
       expenses which may be contracted in providing for my
       needs, comfort, health and welfare;

                                    ...

       To execute and otherwise deliver any beneficiary statement
       or change of beneficiary form associated with any policy of
       insurance pension plan or employee benefit or savings plan
       of any type;

                                    ...

       To transact all business and to do, execute and perform all
       things in my behalf as fully, largely and amply to all intents
       and purposes as I myself might or could do if personally
       present. . . .

                                    ...

       To the extent that the following powers may not explicitly
       be set forth hereinabove, I further hereby grant to my said
       agent the following powers:

          (1) To make limited or unlimited gifts.

                                    ...

          (14) To engage in banking and financial transactions.


                                   -4-
J-A11007-14


                                    ...

        IN WITNESS WHEREOF, I have hereunto set my hand and
        seal this 11th day of January, 2007.

                                   (signature)____________
                                   Betty M. Wetzel

                                    ...

        I, [Appellant], have read the attached power of attorney
        and am the person identified as the agent for the principal.
        I hereby acknowledge that in the absence of a specific
        provision to the contrary in the power of attorney or in 20
        Pa.C.S. when I act as agent:

           I shall exercise the powers for the benefit of the
           principal.

           I shall keep the assets of the principal separate from my
           assets.

           I shall exercise reasonable caution and prudence.

           I shall keep a full and accurate record of all actions,
           receipts and disbursements on behalf of the principal.

                                   (signature)
                                   David L. Patton, Agent

Power of Attorney, 1/11/07, at 1-4 (some internal capitalization omitted).

     During the preliminary hearing, the Commonwealth presented the

testimony of Ms. Wetzel.    Ms. Wetzel testified that she did not authorize

Appellant to transfer any money from her accounts into Appellant’s own,

personal accounts and that she did not authorize Appellant to take her

money and spend it for Appellant’s own, personal benefit. N.T. Preliminary




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Hearing, 10/28/10, at 38-41.2 Moreover, Ms. Wetzel testified that, because

of Appellant’s actions, she now has “no money at all” and that she received

no benefit from Appellant’s transactions. Id. at 38-43.

       At the conclusion of the preliminary hearing, the magisterial district

judge bound Appellant over for court on all charges. Id. at 63.

       On January 14, 2011, Appellant filed an omnibus pre-trial motion and

claimed that the trial court must quash the information because:              1) the

power of attorney authorized Appellant to make “unlimited gifts” of Ms.

Wetzel’s assets – and, therefore, the power of attorney allowed Appellant to

empty Ms. Wetzel’s bank accounts and “gift” the money to Appellant

individually; and, 2) Pennsylvania has no law that criminally punishes the

abuse of a power of attorney.                  Appellant’s Omnibus Pre-Trial Motion,

1/14/11, at 1-6.

       On May 2, 2011, the trial court held a hearing on Appellant’s pre-trial

motion, during which time Appellant presented the testimony of attorney

David P. Brandt (hereinafter “Attorney Brandt”) as both a lay and an expert

witness in the case. See, e.g., Commonwealth v. Huggins, 68 A.3d 962,

967 (Pa. Super. 2013) (“the [Pennsylvania Rules of Evidence] do not


____________________________________________


2
 The transcript of the preliminary hearing states that the hearing took place
on October 28, 2009. However, it is clear that the preliminary hearing
occurred on October 28, 2010. See, e.g., Subpoena to Betty Wetzel,
10/21/10, at 1 (declaring that Ms. Wetzel was ordered to appear for the
October 28, 2010 preliminary hearing).



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preclude a single witness from testifying, or offering opinions, in the capacity

as both a lay and an expert witness”).       As Attorney Brandt testified, he

drafted the relevant power of attorney in this case and he also “practice[s]

extensively in [the field of] durable powers of attorney.”       N.T. Pre-Trial

Motion, 5/2/11, at 19-20.     The Commonwealth did not object to Attorney

Brandt’s lay testimony and the trial court accepted Attorney Brandt as an

expert in “the [field] of powers of attorney.” Id. at 20-21.

      Attorney Brandt testified that, when he drafts a power of attorney, he

always includes the provision granting the agent the power “to make limited

or unlimited gifts.”   Id. at 27.   Further, on direct examination, Attorney

Brandt testified that the phrase “to make limited or unlimited gifts” is

“completely unconditional” – the phrase “enables an agent to do anything

that the principal can do” and it does not “limit to whom a gift can be made.”

Id. at 26. Attorney Brandt also testified that, when he drafted the power of

attorney in this specific case, he “explained to Ms. Wetzel this power of

attorney would enable [Appellant] to do anything that she could do.” Id.

      However, on cross-examination, Attorney Brandt retreated from his

testimony that the gift-giving authority in the power of attorney was

“completely unconditional.” Indeed, on cross-examination, Attorney Brandt

testified that the power of gift-giving – like every authority in the power of

attorney – is subject to the condition that the agent “exercise the power[]

for the benefit of the principal.” Id. at 30-31.

      The trial court denied Appellant’s pre-trial motion on July 7, 2011.

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     On February 24, 2011, the Commonwealth filed a motion to preserve

Ms. Wetzel’s testimony and, on June 27, 2011, the parties deposed Ms.

Wetzel.   During this deposition, Ms. Wetzel testified consistently with her

preliminary hearing testimony. See N.T. Betty Wetzel Deposition, 6/27/11,

at 28-29, 31-36, and 37-38.

     The case proceeded to a non-jury trial on August 27, 2012, where the

case was tried by stipulated evidence. With respect to the Commonwealth’s

case, the Commonwealth introduced (and Appellant stipulated to) the

following evidence: 1) the Commonwealth’s proposed expert witness, Linda

S. Mill, is “qualified as an expert in the field of accounting and fraud

examination;” 2) Ms. Mill’s expert report is admitted in its entirety; 3) if

called to testify, Ms. Mill would testify consistently with her expert report,

wherein Ms. Mills concluded that Appellant removed “$282,905.55 in funds

[] from Ms. Wetzel’s accounts . . . without any authorization by or apparent

benefit to Ms. Wetzel,” that Appellant misappropriated all of those funds,

that Appellant deposited only $5,761.35 in Ms. Wetzel’s accounts, that

Appellant caused Ms. Wetzel a net loss of $277,144.20, and that Appellant

used the $277,144.20 for Appellant’s own benefit; 4) Ms. Wetzel’s June 24,

2011 deposition testimony “is true and accurate and if [she] were to testify

at trial her testimony would be consistent with that contained in [the]

transcript;” 5) the “financial records submitted by the Commonwealth are

true and accurate copies of [f]inancial documents from accounts belonging

to Betty Wetzel and/or [Appellant];” and, 6) the transcripts from the

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preliminary hearings that occurred in the case are admitted and “all

individuals testifying at those hearings would testify consistently if called at

[t]rial.” N.T. Trial, 8/27/12, at 17-18; Expert Report of Linda S. Mill, 4/4/12,

at 1-7. The Commonwealth then rested its case.

      Appellant presented his case by introducing the following stipulated

evidence. First, the parties stipulated that, were Appellant to testify at trial,

Appellant would testify to the following: 1) he is Ms. Wetzel’s nephew; 2)

Ms. Wetzel “had no living husband nor did she have any children during her

lifetime and [she] was a widow at the time of execution of her [p]ower of

[a]ttorney on January 11, 2007;” 3) Appellant believed that he did not

“unlawfully [take] or exercise[] unlawful control over any property of Betty

Wetzel with the intent to deprive her of said property;” 4) Appellant believed

he “made all appropriate payments and/or dispositions of any property of

Betty Wetzel that came into his possession and control and said payments

and dispositions were all made pursuant to the power granted to him by

Betty Wetzel” in the power of attorney; 5) Appellant believed that he, “at no

time, intentionally, knowingly, recklessly[,] or negligently violated the

provisions of [the power of attorney] and at no time felt as though he was in

violation of any criminal statute;” 6) Appellant believed that did not “attempt

to engage in conduct that was [] outside the scope of his authority;” and, 7)

Appellant believed that he did not “intend to violate any provisions of the

Pennsylvania Crimes Code relative to his conduct as the agent of Betty




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Wetzel.”3     N.T. Trial, 8/27/12, at 22; Appellant’s Proposed Stipulations,

6/28/12, at 1-6.

       During Appellant’s case, the parties also stipulated to the May 2, 2011

testimony of Attorney Brandt and certain numbered statements from Ms.

Mill. N.T. Trial, 8/27/12, at 24-27. Appellant then rested his case.

       By order entered September 18, 2012, the trial court found Appellant

guilty of 95 counts of theft by unlawful taking4 and 95 counts of theft by



____________________________________________


3
   Throughout Appellant’s brief to this Court, Appellant claims that the
Commonwealth stipulated that the substance of Appellant’s declarations was
true. See Appellant’s Brief at 27-28, 34-35, and 50-51. Appellant’s claim
constitutes a misreading of the record evidence.             Certainly, the
Commonwealth stipulated to only the fact that, if Appellant were to testify at
trial, Appellant would testify to the above-summarized declarations – but
that the above declarations were not necessarily true. Counsel for the
Commonwealth declared:

         I think the document is clear, but I want to make clear for
         the record all those proposed stipulations are what
         [Appellant] would testify to were he to testify. . . . [T]he
         Commonwealth is not agreeing they’re necessarily true, but
         that [Appellant] would [so] testify.

N.T. Trial, 8/27/12, at 23-24.

Therefore, any claim based upon the faulty assertion that the
Commonwealth stipulated to the substance of Appellant’s proposed
testimony necessarily fails; the Commonwealth stipulated to only the fact
that Appellant “would testify to” the listed declarations.
4
  18 Pa.C.S.A. § 3921(a) defines theft by unlawful taking or disposition as
follows:

(Footnote Continued Next Page)


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failure to make required disposition of funds received.5      Trial Court Order,

9/18/12, at 1. On October 24, 2012, the trial court sentenced Appellant to

an aggregate term of 30 to 60 months in prison for the above convictions.

The trial court then issued an amended sentencing order on November 6,

2012, but the amended order did not alter the trial court’s original

sentencing scheme. Trial Court Order, 11/6/12, at 1.

      Appellant filed a timely notice of appeal and the trial court ordered

Appellant to file and serve a concise statement of errors complained of on

appeal, pursuant to Pennsylvania Rule of Appellate Procedure 1925(b).


                       _______________________
(Footnote Continued)

         A person is guilty of theft if he unlawfully takes, or exercises
         unlawful control over, movable property of another with
         intent to deprive him thereof.

18 Pa.C.S.A. § 3921(a).
5
 18 Pa.C.S.A. § 3927(a) defines theft by failure to make required disposition
of funds received as follows:

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

18 Pa.C.S.A. § 3927(a).



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Appellant complied and listed the following claims in his Rule 1925(b)

statement:

       [1.] Omnibus [p]retrial [m]otions for [r]elief were filed in
       [the case]. The [trial c]ourt denied the relief sought and
       therefore [] Appellant challenges those denials and
       challenges as well all issues that were raised in the
       [o]mnibus [m]otions and were denied as well as all
       subsidiary issues contained therein. . . .

       [2.] At the suggestion, request[,] and insistence of the
       [d]istrict [a]ttorney, [the case was] tried by [the trial court]
       without a jury and further, at the request and insistence of
       the [d]istrict [a]ttorney’s [o]ffice, the matter was submitted
       to the [trial court] for a bench trial on stipulated facts
       submitted to the [trial court] by the Commonwealth and
       [Appellant] and approved by the opposing party. Such
       stipulations were introduced at the trial of this matter and
       were to be the basis for the [trial court’s] findings and
       ultimate verdict. It is submitted that [the trial court] failed
       to consider the stipulation of facts as submitted, especially
       those of [Appellant] which clearly indicate a full
       uncontroverted defense and which stipulated set of facts
       clearly show the [trial court’s] verdict in this matter was in
       error. The submitted stipulation of facts by [] Appellant in
       this matter was approved by the Commonwealth and at no
       time challenged any said stipulated facts and as such,
       admitted to their truthfulness. [The trial court] erred in not
       considering those stipulations and the significance of the
       same.

       [3.] [The trial court] erred in failing to rule that the [p]ower
       of [a]ttorney executed by Betty Wetzel in this matter
       authorized her [a]gent, [Appellant], to make limited as well
       as unlimited gifts under the “[s]pecial [r]ules” pursuant to
       Title 20 of the Pennsylvania Consolidated Statutes. The
       [trial court] erred also in failing to rule that if there was a
       violation by the agent in the [p]ower of [a]ttorney, then the
       appropriate remedy would be removal from that position
       rather than criminal sanctions which are not provided for by
       statute in this Commonwealth. No such criminal action can
       be maintained and the singular remedy provided is for

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        removal of the [a]gent by the [p]rincipal or someone acting
        on behalf of the [p]rincipal. The [p]ower of [a]ttorney as
        prepared and executed by Betty Wetzel is by reference
        hereto made a part hereof. In addition, [the trial court]
        erred in failing to hold that [Appellant] was acting within the
        scope of and pursuant to the authority granted him
        pursuant to the aforesaid [p]ower of [a]ttorney.

        [4.] [The trial court] erred by relying on unreported and
        unprecedented decisions on which the [trial court] based its
        verdict in this matter.

        [5.] The evidence presented in the non-jury trial of this
        matter was insufficient to support the verdict of [the trial
        court]. In viewing all of the evidence admitted at the trial
        of this matter, especially that submitted by stipulation and
        viewing that evidence in the light most favorable to the
        Commonwealth which is and was insufficient evidence to
        enable you, [the trial court], as [f]act [f]inder, to find each
        and every element of the crimes charged beyond a
        reasonable doubt.

Appellant’s Rule 1925(b) Statement, 12/10/12, at 2-5.

     Appellant now raises the following claims to this Court:

        1. Whether, viewing all of the evidence admitted at the trial
        of this matter, especially that submitted by stipulation, and
        viewing that evidence in the light most favorable to the
        Commonwealth, there was sufficient evidence to find each
        and every element of the crimes charged beyond a
        reasonable doubt?

        2. Whether the trial court erred and violated Appellant’s due
        process right to fair notice in failing to rule that the [p]ower
        of [a]ttorney executed by Betty Wetzel in this matter
        authorized her [a]gent, [] Appellant, to make both limited
        and unlimited gifts under the “[s]pecial [r]ules” pursuant to
        Title 20 of the Pennsylvania Consolidated Statutes?

        3. Whether the trial court erred in failing to rule that if there
        was a violation by the [a]gent in the [p]ower of [a]ttorney,
        then the appropriate remedy would be removal from that



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         position rather than criminal sanctions which are not
         provided for by statute in this Commonwealth?

         4. Whether the trial court erred in denying Appellant’s
         omnibus pretrial motions for pretrial relief where the
         Commonwealth failed to establish a prima facie case that
         [Appellant] committed theft by making gifts under an
         unlimited gift power of attorney and criminal prosecution of
         Appellant violates his due process right to fair notice?

         5. Whether the trial court erred by relying on unreported,
         non-precedential decisions in reaching its verdict in this
         matter?

Appellant’s Brief at 8-9.

      We have reviewed the briefs of the parties, the relevant law, the

certified record, and the well-written opinions of the able trial judge, the

Honorable James G. Arner. We conclude that there has been no error in this

case and that the trial court’s opinions, filed on July 6, 2011, September 18,

2012, and February 13, 2013, meticulously and accurately dispose of

Appellant’s claims on appeal. Therefore, we affirm on the basis of the trial

court’s opinions and adopt them as our own. In any future filings with this

or any other court addressing this ruling, the filing party shall attach copies

of the trial court’s opinions.

      Further, and although the trial court has thoroughly explained the

reasons why Appellant’s claims fail, we note the following. First, Appellant

claims that the evidence was insufficient to support his theft convictions

because:    1) the unlimited gift provision in the power of attorney allowed

Appellant to self-gift all of Ms. Wetzel’s money to Appellant individually; 2)

the Commonwealth stipulated to the substance of Appellant’s declaration


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that Appellant, as Ms. Wetzel’s agent, was not required to use the gift-giving

power for Ms. Wetzel’s benefit; and, 3) even if Appellant’s actions were not

authorized, Appellant lacked the necessary mens rea to commit the theft

crimes because he was acting under a power of attorney. See Appellant’s

Brief at 26-46.

         At the outset, we note that Appellant’s Rule 1925(b) statement broadly

and generically claimed that the evidence was insufficient to support his

convictions. Appellant’s statement simply declared:

           The evidence presented in the non-jury trial of this matter
           was insufficient to support the verdict of [the trial court].
           In viewing all of the evidence admitted at the trial of this
           matter, especially that submitted by stipulation and viewing
           that evidence in the light most favorable to the
           Commonwealth which is and was insufficient evidence to
           enable you, [the trial court], as [f]act [f]inder, to find each
           and every element of the crimes charged beyond a
           reasonable doubt.

Appellant’s Rule 1925(b) Statement, 12/10/12, at 4.

         Normally, this generic statement would require that we find Appellant’s

entire    sufficiency   of   the   evidence   claim   waived   on   appeal.   See

Commonwealth v. Garland, 63 A.3d 339, 344 (Pa. Super. 2013) (“In

order to preserve a challenge to the sufficiency of the evidence on appeal,

an appellant's Rule 1925(b) statement must state with specificity the

element or elements upon which the appellant alleges that the evidence was

insufficient”).   Nevertheless, Appellant argued throughout the lower court

proceedings that the power of attorney explicitly authorized his actions in


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this case.     Moreover, in Appellant’s Rule 1925(b) statement, Appellant

claimed that he could not have been criminally prosecuted for theft because

he “was acting within the scope of and pursuant to the authority granted him

pursuant to the aforesaid [p]ower of [a]ttorney.” Appellant’s Rule 1925(b)

Statement, 12/10/12, at 3-4.             Finally, when the trial court discussed

Appellant’s sufficiency of the evidence claim in its opinion, the trial court was

able to discern that the basis of Appellant’s claim was that the power of

attorney explicitly authorized Appellant’s actions.         Trial Court Opinion,

2/13/13, at 9. Therefore, we conclude that Appellant has preserved the first

sub-issue of his sufficiency of the evidence claim:       that the evidence was

insufficient to sustain his theft convictions because the unlimited gift

provision in the power of attorney explicitly allowed Appellant to self-gift all

of Ms. Wetzel’s money to Appellant individually. However, we conclude that

Appellant has waived his second and third sub-issues, as Appellant failed to

include the claims in his Rule 1925(b) statement and the trial court was

unable to “apprehend [the] claim and address it” in its opinion.6           See

Commonwealth v. Laboy, 936 A.2d 1058 (Pa. 2007).

____________________________________________


6
  Further, even if Appellant preserved the second sub-issue in his first
appellate claim, the claim fails. With respect to the second sub-issue of
Appellant’s first claim, Appellant claims that the evidence was insufficient to
support his convictions because, at trial, the Commonwealth stipulated to
the substance of Appellant’s declaration that Appellant, as Ms. Wetzel’s
agent, was not required to use the gift-giving power for Ms. Wetzel’s benefit.
As we have already explained, this claim fails because it is factually
(Footnote Continued Next Page)


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      Simply stated, we reject Appellant’s bold claim that the “unlimited gift”

provision in the power of attorney provided Appellant with a license to steal

Ms. Wetzel’s assets and use all of her money for Appellant’s own benefit. To

the contrary, the gifting power was clearly subject to the condition that

Appellant use the power “for [Ms. Wetzel’s] benefit” – and Appellant clearly

violated this condition when he took all of Ms. Wetzel’s money and used it as

if it was his own. Therefore, since Appellant’s actions were not authorized

by the power of attorney, Appellant’s sufficiency of the evidence claim

necessarily fails.

      For Appellant’s second claim on appeal, Appellant contends that the

theft convictions violated his due process rights because he was not given

fair notice that his actions were criminal. According to Appellant, “[t]here is

nothing in the statutes or in prior reported decisions to indicate that self-

gifts could amount to theft under an unlimited gift power of attorney.”

Appellant’s Brief at 47. This claim is waived, as Appellant failed to include

the claim in his Rule 1925(b) statement. Pa.R.A.P. 1925(b)(4)(iv) (“[i]ssues

not included in the [Rule 1925(b)] Statement . . . are waived”).      Further,

even if the claim were not waived, the claim fails, as we have long held that

                       _______________________
(Footnote Continued)

baseless: the Commonwealth did not stipulate that the substance of
Appellant’s declarations was true. The Commonwealth only stipulated that
“all those proposed [declarations] are what [Appellant] would testify to were
he to testify. . . . [T]he Commonwealth is not agreeing they’re necessarily
true, but that [Appellant] would [so] testify.” N.T. Trial, 8/27/12, at 23-24



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a fiduciary “can be convicted of an embezzlement-type offense . . . [such as]

18 Pa.C.S.A. § 3927 [(theft by failure to make required disposition of funds

received)] . . . if he or she misappropriates funds for a use inconsistent with

the purpose for which the funds are held.”       Commonwealth v. Coward,

478 A.2d 1384, 1387 (Pa. Super. 1984).

      In the case at bar, the power of attorney provided Appellant with the

power to make “unlimited gifts” of Ms. Wetzel’s assets – but the power was

subject to the condition that Appellant “exercise the power[] for the benefit

of” Ms. Wetzel. Power of Attorney, 1/11/07, at 1-4. Appellant exceeded this

authority – and “misappropriate[d Ms. Wetzel’s] funds for a use inconsistent

with the purpose for which the funds [were being] held” – when he used the

power of attorney as if it were a license to steal.      Coward, 478 A.2d at

1387. In doing so, Appellant subjected himself to prosecution for theft by

unlawful taking and theft by failure to make required disposition of funds

received. Appellant’s due process claim fails.

      Third, Appellant claims that the trial court “erred in failing to rule that

if there was a violation by Appellant in the power of attorney, then the

appropriate remedy would be removal from that position and not criminal

sanctions.”   According to Appellant, he should not have been criminally

prosecuted, as “Pennsylvania has no criminal statute specifically governing

the misuse of a power of attorney.” Appellant’s Brief at 52. This claim fails

because Appellant was prosecuted under the theft statutes – and, as was


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explained above, we have long held that a fiduciary “can be convicted of an

embezzlement-type offense . . . [such as] 18 Pa.C.S.A. § 3927 [(theft by

failure to make required disposition of funds received)]          . . . if he or she

misappropriates funds for a use inconsistent with the purpose for which the

funds are held.” Coward, 478 A.2d at 1387.7

       Next, Appellant claims that the trial court erred in denying his omnibus

pre-trial motion.     This claim is based upon the argument that Appellant’s

actions were authorized by the power of attorney and that he did not have

“fair notice” that his actions constituted crimes. Appellant’s Brief at 57. As

was explained above, these claims fail.

       Finally, Appellant claims that the trial court erred when it “rel[ied] on

unreported, non-precedential decisions in reaching its verdict in this matter.”

Id. at 58. Appellant has not explained how this action caused him prejudice.

As a result, Appellant is not entitled to relief on this claim.

       Judgment of sentence affirmed. Jurisdiction relinquished.




____________________________________________


7
  Any claim that Appellant’s convictions were in violation of “the rule of lenity
and strict construction of criminal statutes” is waived, as Appellant did not
include any such claim in his Rule 1925(b) statement. See Appellant’s Brief
at 54.



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Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 9/19/2014




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