J. S26016/17


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37


COMMONWEALTH OF PENNSYLVANIA                :     IN THE SUPERIOR COURT OF
                                            :          PENNSYLVANIA
                                            :
                    v.                      :
                                            :
ROBERT ANTHONY KOLOVICH,                    :
                                            :
                          APPELLANT         :
                                            :     No. 1709 MDA 2016

              Appeal from the Judgment of Sentence July 1, 2016
                In the Court of Common Pleas of Snyder County
              Criminal Division at No(s): CP-55-CR-0000105-2015
                                          CP-55-CR-0000325-2014

BEFORE: BOWES, J., DUBOW, J., and FITZGERALD, J.*

MEMORANDUM BY DUBOW, J.:                                 FILED MAY 25, 2017

        Appellant, Robert Anthony Kolovich, appeals from the Judgment of

Sentence entered in these consolidated cases on July 1, 2016, in the Snyder

County Court of Common Pleas following his conviction of four counts of

Deceptive Business Practices. After careful review, we affirm.

        Appellant was the owner of Lifetime Choice Windows, a business that

purported to sell windows and perform deck-capping services. Beginning in

May 2013, Appellant entered into various contracts in which he agreed to

either purchase windows for customers or to cap their decks.          Appellant




*
    Former Justice specially assigned to the Superior Court.
J. S26016/17


accepted down-payments for those services; however, Appellant did not

perform on the contracts or return the down-payments he received.

     On October 2, 2014, the Commonwealth charged Appellant at Case

No. 325-2014 with two counts of Deceptive Business Practices and one count

of Theft by Deception1 arising from a June 28, 2013 contract with Mary

Romig to perform deck-capping services.         On March 20, 2015, the

Commonwealth charged Appellant at Case No. 105-2015 with two additional

counts of Deceptive Business Practices and one additional count of Theft by

Deception arising from an October 4, 2013 contract with Chad Keister, Brent

Saylor, and Saylor’s construction firm Saylor & Page Construction for window

procurement.

     On September 9, 2015, the Commonwealth filed a Motion in Limine to

introduce evidence pursuant to Pa.R.E. 404(b) of crimes, wrongs, or other

acts on the part of Appellant, and to Consolidate Case No. 325-2014 with

Case No. 105-2015 for trial. On November 2, 2015, the trial court granted

the portion of the Motion seeking to consolidate the matters for trial. With

respect to the Motion in Limine, on December 11, 2015, the court issued an

order directing the Commonwealth to file an Amended Motion providing

more detail as to the type of other crimes, wrongs, or acts the

Commonwealth sought to introduce. The Commonwealth complied with the

1
  18 Pa.C.S. § 4107(a)(2); 18 Pa.C.S. § 4107(a)(6); and 18 Pa.C.S. §
3922(a)(1).




                                   -2-
J. S26016/17


Order; however, the court denied the Commonwealth’s Motion and Amended

Motion on January 26, 2016.

      On March 23, 2016, the Commonwealth again amended the Motion in

Limine, providing the court with more information.2 The court granted the

Amended Motion on April 7, 2016.

      On April 4, 2016, Appellant filed a Motion to Bar Prosecution pursuant

to 18 Pa.C.S. § 110, arguing that the Commonwealth should have joined the

instant cases with Union County Case No. 273-2014, in which a jury had

acquitted Appellant of similar charges. The trial court denied this Motion on

April 18, 2016.

      Following Appellant’s trial on April 26, 2016, the jury convicted

Appellant in both cases of Deceptive Business Practices and acquitted him of

Theft by Deception. On July 1, 2016, the court sentenced Appellant to an

aggregate sentence of 6 to 60 months’ incarceration.      The court awarded

Appellant 201 days’ credit for time served.

      Appellant filed a Post-Sentence Motion on July 11, 2016, which the

trial court denied.   This appeal followed.    Appellant and the trial court

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

      Appellant raises the following four issues on appeal:

2
  The Commonwealth sought to admit evidence that it had charged Appellant
on September 3, 2014, in Union County at Case No. 273-2014 with similar
crimes arising from an October 26, 2013 service contract to perform
construction services, where Appellant had failed to perform the services
under the contract or repay the funds the victims paid him.



                                     -3-
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          1. Did error occur when the [t]rial [c]ourt permitted
          consolidation?

          2. Did error occur where the [t]rial [c]ourt permitted
          admission of other alleged crimes, wrongs[,] and/or acts?

          3. Did the [t]rial [c]ourt err in denying Appellant’s Motion
          under 18 Pa.C.S.[] Sec. 110?

          4. Was evidence insufficient to convict Appellant as the
          Commonwealth did not prove guilt beyond a reasonable
          doubt, nor did the Commonwealth prove that Appellant
          had the requisite intent to establish guilt?

Appellant’s Brief at 7.

      In his first issue, Appellant challenges the trial court’s Order granting

the   Commonwealth’s      Motion    for   Consolidation,   arguing   that   the

Commonwealth failed to follow the proper procedures for consolidation. Id.

at 11.3

      The consolidation of criminal cases is controlled by Pa.R.Crim.P. 582.

Rule 582(B)(1) requires that the Commonwealth notify a defendant of its

intent to consolidate separate indictments or informations at or before

arraignment. See Pa.R.Crim.P. 582(B)(1). If, however, such notice is not

provided, “any party may move to consolidate for trial separate indictments

or informations, which motion must ordinarily be included in the omnibus

pretrial motion.” Pa.R.Crim.P. 582(B)(2) (emphasis added).


3
  Where an appellant challenges the interpretation of the rules of criminal
procedure, “our standard of review is de novo and our scope of review is
plenary.”  Commonwealth v. Libengood, 152 A.3d 1057, 1059 (Pa.
Super. 2016) (citation omitted).



                                     -4-
J. S26016/17


      Here, the Commonwealth did not notify Appellant of its intent to

consolidate the instant cases at or before his April 13, 2015 arraignment.

Rather, on September 23, 2015, the Commonwealth filed a Motion to

Consolidate.      Appellant argues that because the Commonwealth did not

notify him of its intent at or before his arraignment, and failed to file an

Omnibus Pretrial Motion within 30 days of his arraignment, 4 the trial court

erred in granting the Commonwealth’s Motion to Consolidate.        Appellant’s

Brief at 11-12.

      We disagree with Appellant. Although Rule 582(B)(2) provides that a

Motion to Consolidate would “ordinarily be included in the omnibus pretrial

motion[,]” nothing in the Rule precludes a later filing.   Moreover, we note

that Appellant has not alleged that the court’s Order consolidating his cases

prejudiced him in any way. See Commonwealth v. Boyd, 461 A.2d 1294,

1298 (Pa. Super. 1983) (noting that “courts have held that consolidation of

separate informations for trial is a matter of discretion with the trial judge,

and that the exercise of this discretion will be reversed only for manifest

abuse of discretion or prejudice and clear injustice to the defendant.”).

Accordingly, Appellant is not entitled to relief.

      In his second issue, Appellant alleges that the trial court erred in

admitting Pa.R.Crim.P. 404(b) evidence of crimes, wrongs, or other acts on

4
  See Pa.R.Crim.P. 579(A), which directs filing of the omnibus pretrial
motion within 30 days, unless the opportunity did not exist or counsel was
not aware of the grounds for the motion.



                                       -5-
J. S26016/17


the part of Appellant. Appellant’s Brief at 12-13. He claims that the court

erred in entertaining, and subsequently granting, the Commonwealth’s

Second      Amended    Motion   because,     in   so   doing,   it   permitted   the

Commonwealth to take a “third bite at the apple[,]” which “flies in the face

of [Appellant’s] constitutional rights to due process, compulsory process and

informed nature of charges under Article One Section Nine of the

Pennsylvania Constitution and the Fifth, Sixth and 14th Amendments [sic] to

the U.S. Constitution.” Id. at 13.5

        Notably, Appellant does not challenge the substance of the admitted

evidence, or the purpose for which the trial court permitted its admission, or

the probative versus prejudicial value of the evidence.          Rather, Appellant

claims that, in granting the Commonwealth’s Second Amended Motion to


5
    Our standard of review of the admission of evidence is well-settled:

           The admission of evidence is a matter vested within the
           sound discretion of the trial court, and such a decision
           shall be reversed only upon a showing that the trial court
           abused its discretion. In determining whether evidence
           should be admitted, the trial court must weigh the relevant
           and probative value of the evidence against the prejudicial
           impact of the evidence. Evidence is relevant if it logically
           tends to establish a material fact in the case or tends to
           support a reasonable inference regarding a material fact.
           Although a court may find that evidence is relevant, the
           court may nevertheless conclude that such evidence is
           inadmissible on account of its prejudicial impact.

Commonwealth v. Antidormi, 84 A.3d 736, 749 (Pa. Super. 2014)
(citation omitted).




                                       -6-
J. S26016/17


admit the evidence, the court violated Appellant’s due process rights.

Appellant has not, however, developed this argument in any meaningful way

and has not supported this averment with citation to controlling authority or

to the place in the record where he preserved this claim. Accordingly, we

find this issue waived. See Pa.R.A.P. 2117(c); 2119(c), (e).

      In his third issue, Appellant claims the trial court erred in denying his

Section   110   Motion.      Appellant   baldly   claims    that   because   the

Commonwealth accused him of the same criminal conduct in Union and

Snyder Counties,6 Section 110(1)(ii) barred the Commonwealth from

prosecuting him in Snyder County after his October 30, 2015 Union County

acquittal. Appellant’s Brief at 13-14.

      Appellant challenges the trial court’s interpretation and application of

18 Pa.C.S. § 110. Thus, “our standard of review is de novo, and our scope

of review is plenary.” Commonwealth v. Fithian, 961 A.2d 66, 71 n.4 (Pa.

2008).

      Section 110 provides, in relevant part, as follows:

          § 110. When      prosecution    barred           by   former
          prosecution for different offense

          Although a prosecution is for a violation of a different
          provision of the statutes than a former prosecution or is
          based on different facts, it is barred by such former
          prosecution under the following circumstances:

6
  The Commonwealth has accused Appellant of similar conduct in Snyder and
Union, as well as nine other counties. Snyder and Union counties comprise
the 17th Judicial District.



                                     -7-
J. S26016/17



            (1) The former prosecution resulted in an acquittal or
            in a conviction as defined in section 109 of this title
            (relating to when prosecution barred by former
            prosecution for the same offense) and the
            subsequent prosecution is for:

                  (ii) any offense based on the same
                  conduct or arising from the same criminal
                  episode, if such offense was known to the
                  appropriate prosecuting officer at the time
                  of the commencement of the first trial and
                  occurred within the same judicial district
                  as the former prosecution unless the court
                  ordered a separate trial of the charge of
                  such offense[.]

18 Pa.C.S. § 110(1)(ii).

      As has been summarized by our Supreme Court, Section 110(1)(ii)

contains four requirements which, if met, preclude subsequent prosecution

due to a former prosecution for a different offense:

         (1)      the former prosecution must have resulted in an
                  acquittal or conviction;

         (2)      the current prosecution is based upon the same
                  criminal conduct or arose from the same criminal
                  episode as the former prosecution;

         (3)      the prosecutor was aware of the instant charges
                  before the commencement of the trial on the
                  former charges; and

         (4)      the current offense occurred within the same
                  judicial district as the former prosecution.

Fithian, 961 A.2d at 72.

      Appellant   also     argues   that   the   trial   court’s   reliance   on

Commonwealth v. Nolan, 855 A.2d 834 (Pa. 2003), is misplaced in that


                                     -8-
J. S26016/17


Nolan’s discussion differentiating criminal enterprises and episodes is not

applicable to this case. Id. at 13.

      In Nolan, supra, the Commonwealth charged the defendant with

stealing and reselling more than 25 vehicles from individuals and dealerships

in Lackawanna and Luzerne Counties over a seven-month period.           Nolan,

855 A.2d at 835-36.     Ultimately, pursuant to a plea agreement, Appellant

pled guilty in Lackawanna County to nine counts of Receiving Stolen

Property and one count of Theft.       Id. at 835. Three months later, at the

start of his Luzerne County trial, Nolan moved for the dismissal of all

charges pending against him, asserting, inter alia, the applicability of Section

110’s compulsory joinder rule.        Id. at 837.   The trial court granted the

motion in part, and dismissed all charges that the trial court concluded

overlapped with the Lackawanna County prosecution.            Id.    A Luzerne

County jury convicted Nolan of six counts of Theft by Unlawful Taking and

five counts of Receiving Stolen Property. Id.

      Following a direct appeal, Nolan unsuccessfully sought post-conviction

ineffective assistance of counsel relief related to his Section 110 claim. Id.

at 838.    The post-conviction relief court found that “[Nolan] failed to

demonstrate how his elaborate criminal operation, which transpired on

different dates, with different victims, different police departments, and

which was separately charged in different counties eight months apart, were

‘logically and temporally related’ such as might constitute a single criminal



                                       -9-
J. S26016/17


episode.”   Id. (citing Commonwealth v. Hude, 458 A.2d 177, 183 (Pa.

1983) (holding that, at a minimum, § 110 requires events be “logically and

temporally related[,]” which is determined by considering, among other

things, the degree to which the events raise duplicative issues of law and

fact)). Our Supreme Court agreed with the post-conviction relief court, and

concluded that the defendant’s multi-faceted illegal operation did not

constitute a single criminal episode for purposes of Section 110. Nolan, 855

A.2d at 841.

      In the instant matter, Appellant does not analyze or distinguish the

facts in the instant matter from those in Nolan. The trial court concluded

that, although Appellant’s “actions may constitute one criminal enterprise[,

they do not constitute] one criminal episode.” We agree with the trial court

that the Section 110(1)(ii) did not bar Appellant’s subsequent prosecution in

Snyder County. We conclude that, as with the actions in Nolan, Appellant’s

acts, which occurred in different locations and over a period of many months

in Snyder and Union Counties, lacked the logical and temporal relationship to

constitute one criminal episode, which would have necessitated the cases’

joinder. Accordingly, this claim fails.

      In his last issue, Appellant claims the Commonwealth failed to adduce

sufficient evidence to sustain his conviction.     Appellant’s Brief at 14.

Appellant argues that, in the absence of any evidence of his intent to




                                     - 10 -
J. S26016/17


deceive, the Commonwealth merely proved that he was a “less than stellar

businessman[, not] a criminal.” Id. at 14-15.

      We apply the following standard of review when considering a

challenge to the sufficiency of the evidence:

         In determining whether the evidence was sufficient to
         support a defendant’s conviction, we must review the
         evidence admitted during the trial along with any
         reasonable inferences that may be drawn from that
         evidence in the light most favorable to the Commonwealth
         as the verdict winner. If we find, based on that review,
         that the jury could have found every element of the crime
         beyond a reasonable doubt, we must sustain the
         defendant’s conviction.

Commonwealth v. Crawford, 24 A.3d 396, 404 (Pa. Super. 2011)

(citation omitted).   “The Commonwealth is not required to depend upon

proof by direct evidence, but may also meet its burden by circumstantial

evidence alone.” Id. at 405.

      The Crimes Code defines the offense of Deceptive Business Practices,

in relevant part, as either “sell[ing], offer[ing] or expos[ing] for sale, or

deliver[ing] less than the represented quantity of any commodity or

service[,]” or “mak[ing] or induc[ing] others to rely on a false or misleading

written statement for the purpose of obtaining property or credit.” See 18

Pa.C.S. §§ 4107(a)(2), (a)(6).7



7
  Although Appellant asked for, and received, a jury instruction regarding
intent, the statutory definition of Deceptive Business Practices does not
contain any element of intent.



                                    - 11 -
J. S26016/17


      We have reviewed the record in this case and conclude that the jury as

fact-finder had sufficient evidence on which to base Appellant’s convictions.

In conducting our review, we find the trial court ably addressed and

analyzed Appellant’s sufficiency argument in its Rule 1925(a) Opinion. See

Trial Ct. Op., 9/13/16, at 5-9.       We, therefore, adopt that portion of the

Opinion as our own. The parties are directed to attach the September 13,

2016 Opinion to any future filings.

      Judgment of Sentence affirmed.

Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary

Date: 5/25/2017




                                       - 12 -
                                                                             Circulated 05/03/2017 01:38 PM




                                                                                         copy
 COMMONWEALTH OF PENNSYLVANIA                        IN THE COURT    OF COMMON PLEAS
                                                :    OF THE 17TH JUDICIAL DISTRICT
                         vs.                         OF PENNSYLVANIA
                                                     SNYDER COUNTY BRANCH
 ROBERT A. KOLOVICH,
                               Defendant        :    CRIMINAL DIVISION
                                                     NO. CP-55-CR-325-2014
                                                :    NO. CP-55-CR-105-2015


                                           OPINION                     if9LEF
Knight, S.J. - September         139   2016                            SEP      3 ZOle

                                                             PROTHONOTARY AND CLERK OF ri3OWITS
 1.    Introduction.                                                 SNYDER 00111-4TY


         The Defendant was charged in two separate cases - No. 325-2014 (victim

Mary Romig) and 105-2015 (victim Brent Saylor/ Chad Keister)            -   with two

counts    of deceptive   business practices, violation   18 Pa. C.S.A. §4107(a)(2)       and
(6),   and one count of theft by deception, violation 18 Pa. C.S.A. §3922(a)(1).
         On September 29, 2015 the Commonwealth filed a motion in limine

seeking to introduce pursuant to Pa.R.E. 404(b) evidence of crimes, wrongs or
other acts on the part of the Defendant. President Judge Michael T. Hudock

issued an Order on December 11, 2015 directing the Commonwealth to file an
Amended Motion providing greater details on the type of other crimes, wrongs,

or acts evidence the Commonwealth intended to introduce. The initial motion

and amended motion were then denied by President Judge Michael Hudock on
January 26, 2016. The Commonwealth thereafter on March 23, 2016 filed A
Second Amended Motion in Limine seeking to introduce the same evidence but
providing more details. Judge Hudock granted the Amended Motion granted
                                                                                                           COPY
    on April 7, 2016. The Commonwealth additionally filed a motion to consolidate

    the two cases for trial, which we granted on November 2, 2015. The Defendant

    also filed Motion to bar Prosecution Under 18 Pa.C.S,A. §110, which Motion

    was denied by Judge-Hudock on April 18, 2016. Shortly before trial the

    Defendant filed a Motion in Limine asking the Court to give a jury instruction

    in regard to the charges of deceptive business practices, that the

    Commonwealth must prove that the Defendant acted with an intent to deceive

    and asking the Court to exclude certain evidence regarding communications

    from one of Defendant's suppliers as inadmissible hearsay. We granted the

    Motion on April 26 shortly before the trial was to start.

          At trial on April 26, 2016 the Defendant was convicted by the jury in

    both cases on each of the theft by deception counts and acquitted on the count

    of theft by deception. Sentencing took place on                  July    1,   2016, which was

    followed by the Defendant's Motion for Post-Sentence Relief filed on July 11,

    2016, which is now before the Court. Both sides have filed supporting briefs,
    and we issue this Opinion in support of our decision to deny the Defendant's
Motion.

2. Discussion.

         The Defendant raises four issues in his Post -Sentence Motion, which we

will   address in order as follows.:


*The Defendant included two additional issues in his Motion - verdict against the weight of the evidence and   a
                                   -
violation of his constitutional rights which he did not brief. We, therefore, consider them waived.
                                                                                  COPY
      2.1. Whether the Court Erred in Consolidating for Trial the
 Defendant's Two Cases.
        The Defendant's Motion is not based on any substantive objection to

 consolidation but rather on the fact that the Commonwealth did not give Notice
 to the Defendant of its intent to consolidate at or before arraignment as

required by Pa.R.Crim.P. 582(B)(1), or in the alternative did not include the

consolidation request in an omnibus pretrial motion which under Pa.R.Crim. P.

579   (A)   should have been filed within 30 days of arraignment.
            A   close reading of the rule shows that the "notice" procedure allows for

immediate consolidation but subsection (B)(2) also allows for the filing of a

separate Motion for Consolidation where such "notice" is not given. The rule
suggests that such a motion would normally be part of an omnibus pretrial

motion. Admittedly the Commonwealth's Motion was not filed within 30 days

of arraignment. But nothing in the rule precludes a later filing. Moreover, the

Defendant has alleged no "prejudice or manifest injustice" from the Court's
decision to consolidate. Commonwealth            u,   Nahavandian, 849 A.2d 1221, 1227
(Pa. Super. 2004).


     2.2. Whether the Court Erred in. Allowing the Introduction into
Evidence of Other Crimes, Wrongs, or Acts.
      The Defendant challenges the decision by Judge Hudock to allow the

Commonwealth to succeed in its effort to be allowed to introduce evidence of

other.crimes, wrongs, or acts by the filing of a Second Amended Motion to allow

such evidence when its first Motion was denied.
                                             3
                                                                                  COPY
          The Commonwealth contends in its brief that the "coordinate jurisdiction

 rule" precludes our reviewing Judge Hudock's decision on April 7, 2016. The

 rule provides that judges of coordinate jurisdictions (i.e. in this case a judge of
 the same judicial district as the present judge) should not overrule each other's

 decisions. "This rule...is a rule of sound jurisprudence based on a policy of

 fostering the finality of pre-trial applications in an effort to maintain judicial

 economy and efficiency." Commonwealth        v.   Starr, 664 A.2d 1326, 1331 (Pa.

 1995).

          We agree with the Commonwealth. We        cannot disturb Judge Hudock's
ruling so we have no authority to review it. For purposes of this decision we
rely upon the Order entered by Judge Hudock and incorporate it into this

Opinion.


      2.3. Whether the Court Erred in Denying Defendant's Motion to Bar
Prosecution under 18 Pa.C.S.A. §110.
       The Defendant contends     that because he was acquitted in Union County,
on charges of the same or similar criminal conduct as in this case, and

because Union and Snyder Counties are part of the same judicial District, the
previous Union County prosecution bars prosecution in this case. Judge

Hudock's April 18, 2016 decision to deny Defendant's Motion relied upon the

Supreme Court's decision in Commonwealth           v.   Nolan, 855 A.2d 834, 839 (Pa.
                                                                   0
2003). As Judge Hudocic noted, the Defendant may have been involved in one

criminal enterprise in both counties but not one criminal episode.


                                          4
                                                                            COPY
      The Commonwealth again contends that we cannot review Judge

Hudock's ruling because of the "coordinate jurisdiction rule." As we stated

before on the issue of the admission of other crimes, wrongs, or acts, we

cannot overturn.Judge Hudock's ruling and, therefore, rely upon his decision
as part of our opinion.

     2.4. Whether There Was Sufficient Evidence to Convict the
Defendant of Deceptive Business Practices.

           Our well -settled standard of review when evaluating a
           challenge to the sufficiency of the evidence mandates
           that we assess the evidence and all reasonable
           inferences drawn therefrom in the light most favorable
           to the verdict -winner. Commonwealth v. Salamone,
           897 A.2d 1209, 1213 (Pa.Super. 2006) (citation
           omitted). We must determine whether there is
           sufficient evidence to enable the fact finder to have
           found every element of the crime beyond a reasonable
           doubt. Commonwealth v. Clark, 895 A.2d 633, 634
           (Pa.Super. 2006) (citation omitted).
                    In applying the above test, we may not weigh the
            evidence and substitute our judgment for that of the
            fact -finder. In addition, we note that the facts and
            circumstances established by the Commonwealth need
            not preclude every possibility of innocence. Any
           doubts regarding a defendants guilt may be resolved
           by the fact -finder unless the evidence is so weak and
           inconclusive that as a matter of law no probability of
           fact may be drawn from the combined circumstances.
           The Commonwealth may sustain its burden of proving
           every element of the crime beyond a reasonable doubt
           by means of wholly circumstantial evidence. More-
           over, in applying the above test, the entire record must
           be evaluated and all evidence actually received must
           be considered. "Finally, the trier of fact while passing
           upon the credibility of witnesses and the weight of the
           evidence produced, is free to believe all, part or none of
                                                                                COPY
               the evidence.

         Commonwealth    v.   Kerry, 906 A.2d 1237, 1240 (Pa.Super. 2006).

 As   requested by the Defendant we added a jury instruction requiring proof

 beyond a reasonable doubt of an intent to deceive, TheDefendant

 acknowledges that such intent may be shown by circumstantial evidence. Yet

 without any specific evaluation of the evidence in terms of its insufficiency, the
 Defendant argues the evidence was insufficient to show an "intent to deceive."

The Defendant's failure to be specific and particular as to the grounds for relief

results in a waiver of his argument. Pa. R.Crim.P. 720(B)(1) states that     "All

requests for relief from the trial court must be stated with specificity and
particularity." The Official Comment to the rule expands on the foregoing
requirement:

        Under paragraph (B)(1)(a), the grounds for the post -sentence
        motion should be stated with particularity. Motions alleging
        insufficient evidence, for example, must specify in what way
        the evidence was insufficient ...
In Commonwealth v. Thoeun Tha, 64 A.3d 704, 713 (Pa. Super. 2013),

a case dealing with a post-sentence motion, the Superior Court stated, "Failure

to present or develop an argument in support of a claim causes it to be

waived." 64 A.2d at 713.

       In his brief,the Defendant makes the comment, "Where,      as here, an
accused does not testify, it is well-nigh impossible [to show an intent to
deceive)." We don't understand the Defendant's argument unless he is saying


                                           6
                                                                                 COPY
 that an intent   to deceive can only be derived from some kind of   statement of
 intention on the part of a defendant.
         As noted;   that is not the law. It is proper to consider surrounding
 circumstances ,to (determine an intent to deceive. "...and intent,to deceive,.like
 any other element of the burden of proof, may be inferred from conduct or from

 facts and attendant circumstances which are of such a nature as to prove [a

 defendant's] guilt beyond a reasonable doubt." Commonwealth         v.   Shapiro, 418

 A.2d 594, 598 (Pa. Super. 1980).

         The evidence in this case showed that the Defendant took money

deposits from the victims. Brent Saylor testified that after making the down

payment, with a promised delivery of windows within 5 to 6 weeks, the

windows never arrived. Saylor had conversations with the Defendant in which

the Defendant said he had trouble getting the windows. He never offered

Saylor any proof he had placed an order. Eventually, Saylor could not get hold

of the Defendant. Saylor never received any money        back from the Defendant.
         The daughter of the second victim Mary Romig provided the Defendant

with a down payment. Delivery was promised in 6 to 8 weeks. At the 7th week

of no delivery the daughter contacted the Defendant who said it was only the

7th   week and that the windows would be in the following week. After the 8th

week with no windows, the daughter contacted the Defendant on a weekly

basis for almost two months.      At   the point of 14 weeks the Defendant was

offering such excuses as he had a worker in the hospital, or the product was


                                            7
                                                                                COPY
 hard   to get. Eventually, Mrs. Romig asked for     her money back. The Defendant

 promised to return the money the very next week. No money was received. On

 a particular Friday the daughter talked to the Defendant's secretary who said

..he was out sick and would be back Monday. .0n Monday the daughter,called

 and was told the Defendant was still out sick. The daughter threatened to go
 to the police if the money was not returned. Nothing happened. Eventually,

 the only response the daughter got from her calls was an answering machine.

        The Commonwealth presented testimony from other victims of the

Defendant - Ronald Hamm, Rae Ann Karchner, Deborah Maggs, and Donna

 Kefalas   - all of whom   told similar stories. They gave the Defendant a deposit

on windows or deck work; weeks passed with no delivery of materials; when

contacted the Defendant offered various excuses such as illness, bad weather,

too busy with otheriobs; requests for refunds were ignored; and eventually a

 the victims were completely unable to reach the Defendant.

        The factual scenarios presented by the Commonwealth are reminiscent of

 the evidence in Commonwealth       v.   Eline, 940 A.2d 421, 433 (Pa. Super. 2007) in

which an intent to deceive beyond a reasonable doubt was found from the fact

that the defendant took money deposits from the victims, never performed the
promised work (construction of swimming pools) within the agreed time or at

all, was unresponsive to repeated telephone calls from the victims, and never

refunded their money.

        We   have no hesitation in concluding there was sufficient evidence for the
                                                                          COPY
jury to convict the Defendant of deceptive business practices.

3. Conclusion.

       For the above stated reasons, we can find no error committed by the trial

court. By separate Order the Defendant's Post -Sentence Motion will be denied.




                                        BY THE COURT:


                                       It     W   V.A.7t
                                        Knight
Copies to:   District Attorney
             Brian Ulmer, J.D.
             Jenna Neidig, J.D., Law Cleric
             Judge Knight's file
Ecopies:     Hon. Michael T. Hudock, P.J.
             Hon. Michael H. Sholley, J.




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