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NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA                   IN THE SUPERIOR COURT OF
                                                     PENNSYLVANIA


                   v.

MICHAEL CIOPPA

                        Appellant                   No. 958 WDA 2016


           Appeal from the Judgment of Sentence May 12, 2016
            In the Court of Common Pleas of Allegheny County
           Criminal Division at No(s): CP-02-CR-0001617-2015


BEFORE: PANELLA, J., DUBOW, J., and FORD ELLIOTT, P.J.E.

MEMORANDUM BY PANELLA, J.                            FILED JUNE 27, 2017

     Appellant, Michael Cioppa, appeals from the judgment of sentence

entered on May 12, 2016, in the Court of Common Pleas of Allegheny

County. Cioppa, the owner of Cioppa Asphalt & Seal Coating, appeals his

convictions for theft by deception and home improvement fraud, stemming

from his failure to resurface a residential driveway—a driveway he left

“subpar and look[ing] horrible.” We affirm.

     This case proceeded to a bench trial where the parties agreed that

they would simply enter into evidence, in lieu of testimony, the affidavit of

probable cause attached to the criminal complaint. The affidavit of probable

cause establishes the following. Christina Bougher hired Cioppa’s company

to resurface her driveway. On October 17, 2014, she paid Cioppa a down

payment of $600. Work began the next day. That day, Cioppa’s cousin, and
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his employee, Victor Cioppa, requested an additional $350 for supplies and

equipment, which Bougher paid. After that day, neither Cioppa nor his

cousin ever returned to the jobsite, leaving the job unfinished. The work

done was “subpar and looked horrible.” Affidavit of Probable Cause, dated

11/12/14. Bougher attempted to contact Cioppa “multiple times,” but to no

avail. Id. She had to hire another company “to remove the subpar work”

Cioppa left behind. Id. And she went to the police to report Cioppa.

      The trial court convicted Cioppa of theft by deception, 18 Pa.C.S.A. §

3922(a)(1), and home improvement fraud, 73 P.S. § 517.8(a)(2), and later

imposed a period of incarceration of six to twelve months, from which he

was immediately paroled. The trial court also imposed restitution.

      On appeal, Cioppa first argues that the Commonwealth presented

insufficient evidence to sustain the convictions. We disagree.

      Our standard of review for a challenge to the sufficiency of the

evidence is to determine whether, when viewed in a light most favorable to

the verdict winner, the evidence at trial and all reasonable inferences

therefrom are sufficient for the trier of fact to find that each element of the

crimes   charged   is   established   beyond    a   reasonable   doubt.   See

Commonwealth v. Dale, 836 A.2d 150, 152 (Pa. Super. 2003). “The

Commonwealth may sustain its burden of proving every element of the

crime beyond a reasonable doubt by means of wholly circumstantial




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evidence.” Commonwealth v. Bruce, 916 A.2d 657, 661 (Pa. Super. 2007)

(citation omitted).

      “[T]he facts and circumstances established by the Commonwealth

need not preclude every possibility of innocence.” Id. (citation omitted). Any

doubt raised as to the accused’s guilt is to be resolved by the fact-finder.

See id. “As an appellate court, we do not assess credibility nor do we assign

weight to any of the testimony of record.” Commonwealth v. Kinney, 863

A.2d 581, 584 (Pa. Super. 2004). Therefore, we will not disturb the verdict

“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.” Bruce,

916 A.2d at 661 (citation omitted).

      “A person is guilty of theft if he intentionally obtains or withholds

property of another by deception. … A person deceives if he intentionally:

creates or reinforces a false impression, including false impressions as to

law, value, intention or other state of mind[.]” 18 Pa.C.S.A. § 3922(a)(1). To

sustain a conviction for theft by deception “it must be because appellant

never intended to perform his part of the contract….” Commonwealth v.

Gallo, 373 A.2d 1109, 1111 (Pa. 1977). This is because the subsection

provides that “deception as to a person’s intention to perform a promise

shall not be inferred from the fact alone that he did not subsequently

perform the promise[.]” 18 Pa.C.S.A. § 3922(a)(1).




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     Cioppa argues that the Commonwealth presented no evidence of

intent except the failure to perform. He analogizes this case to cases where

we found no evidence that the defendant never intended to perform his part

of the contract, instead finding that the defendant simply failed to perform

his contractual obligation. See, e.g., Commonwealth v. Bentley, 448 A.2d

628 (Pa. Super. 1982). He also relies on Bentley to argue that “the failure

to perform the work after requesting additional funds cannot be used to

prove the intent to deceive.” Appellant’s Brief, at 15. Indeed, he claims

Victor Cioppa’s actions in returning the second day to ask for more money

cannot even be imputed to him.

     Cioppa is certainly correct that merely requesting additional funds to

complete work, after receiving a down payment, and then not completing

the work, is not proof, by itself, of the intent to deceive. That is not what

happened here. What Cioppa fails to mention in his brief, and what readily

distinguishes this case from Bentley, is that the work done here was

“subpar and looked horrible.” Further, it is a reasonable inference for the

factfinder to attribute Victor Cioppa’s actions, Cioppa’s employee, in

returning to ask for more money, to Cioppa. By the end of the second day,

all Cioppa accomplished was work that was gravely deficient—and then

nothing. Bougher was unable thereafter to contact Cioppa. She then had to

hire another company “to remove the subpar work” Cioppa left behind.




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         Looking at the totality of the circumstances, in the light most favorable

to the Commonwealth, we find that the Commonwealth presented sufficient

evidence that Cioppa never intended to perform his part of the contract. The

slapdash, poor quality work, when coupled with Bougher’s inability to

contact Cioppa, permits the factfinder to find intent to deceive. We sustain

the conviction for theft by deception.

         Cioppa next argues that the Commonwealth failed to prove that he

acted “with intent to defraud … anyone or with knowledge that he is

facilitating a fraud … to be perpetrated by anyone, the actor,” necessary to

sustain his conviction for home improvement fraud, 73 P.S. § 517.8(a)(2).

As we just explained that the evidence adduced by the Commonwealth was

sufficient to establish that Cioppa acted with the intent to defraud, we need

not address this claim any further. We sustain the conviction for home

improvement fraud.

         Lastly, Cioppa claims the verdict is against the weight of the evidence.

As mentioned, this case proceeded by way of a bench trial on stipulated

facts.

         “[W]e may only reverse the lower court’s verdict if it is so contrary to

the evidence as to shock one’s sense of justice.” Commonwealth v.

Champney, 832 A.2d 403, 408 (Pa. 2003) (citations omitted). A verdict is

said to be contrary to the evidence such that it shocks one’s sense of justice

when “the figure of Justice totters on her pedestal,” or when “the jury’s


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verdict, at the time of its rendition, causes the trial judge to lose his breath,

temporarily, and causes him to almost fall from the bench, then it is truly

shocking to the judicial conscience.” Commonwealth v. Davidson, 860

A.2d 575, 581 (Pa. Super. 2004) (citations omitted), aff’d, 938 A.2d 198

(Pa. 2007).

      The trial court found the verdict did not shock its sense of justice. We

find no abuse of discretion with this conclusion. The figure of Justice is firmly

rooted to her pedestal in this case. Therefore, this claim fails.

      Judgment of sentence affirmed.

Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 6/27/2017




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