J-A23029-15


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA                   IN THE SUPERIOR COURT OF
                                                     PENNSYLVANIA
                            Appellant

                       v.

SCOT DEE EMEIGH

                            Appellee               No. 1497 WDA 2014


                Appeal from the Order Entered August 15, 2014
               In the Court of Common Pleas of Somerset County
              Criminal Division at No(s): CP-56-CR-0000073-2013


BEFORE: GANTMAN, P.J., LAZARUS, J., and MUSMANNO, J.

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

        The Commonwealth of Pennsylvania appeals from the order, entered in

the Court of Common Pleas of Somerset County, which partially granted

Scot Dee Emeigh’s petition for writ of habeas corpus after he was charged

with theft by deception1 and home improvement fraud2 under the Home

Improvement Consumer Protection Act (HICPA).3 Upon review, we affirm in

part, reverse in part, and remand for further proceedings.

        In July 2012, Emeigh prepared six proposals for home improvement

projects on the property of the elderly victim, Dorinda Bowser.   The work

____________________________________________


1
    18 Pa.C.S. § 3922(a)(1).
2
    73 P.S. § 517.8(a)(2).
3
    73 P.S. §§ 517.1-517.18.
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was to be completed on Bowser’s living room,4 day room,5 laundry room,6

house and barn roofs,7 fireplace,8 and included replacement of three

windows.9      In each proposal, Emeigh held himself out to be a licensed

contractor. None of the proposals included anticipated start or end dates.

Bowser accepted all of the proposals in July and August 2012 and paid the

down payment for each proposal by check.10       After Bowser accepted the
____________________________________________


4
 Proposal #2713 involved a total cost of $46,500.00 and down payment of
$23,500.00.
5
 Proposal #2705 involved a total cost of $2,800.00 and down payment of
$1,400.00.
6
 Proposal #2700 involved a total cost of $7,700.00 and down payment of
$3,850.00.
7
 Proposal #2698 involved a total cost of $13,800.00 and down payment of
$6,900.00.
8
 Proposal #2716 involved a total cost of $14,800.00 and down payment of
$7,400.00.
9
 Proposal #2699 involved a total cost of $1,575.00 and down payment of
$787.50.
10
   The total amount of the checks was $53,137.50, while the total of the
down payments was $43,137.50, for a difference of $9,300. Part of this
excess in payment can be explained by alterations to Proposal 2698 for the
house and barn roof. A portion of the work was completed and the next
installment of 25 percent of the total, or $3,450.00, was paid as agreed.
Additional work was agreed upon in the amount of $1,800.00 and a $900.00
deposit was paid. However, this leaves $4,950.00 in excess payment that is
not accounted for except that Bowser testified that “[e]very time [Emeigh]
came, he asked for more money.” N.T. Habeas Corpus Hearing, 4/16/14, at
44.




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proposals, Emeigh requested additional payment, allegedly for unforeseen

labor and materials costs, including trusses for the living room renovations.

Bowser gave personal property to Emeigh as payment for the extra labor

and materials Emeigh requested.11

       Emeigh completed some of the work during August 2012, including

demolition work inside the living room and removing and replacing some

shingles on the house’s roof. Bowser waited approximately one month and

called Emeigh to ask when he would return to finish the work. He did not

indicate when he would come back and did not did not return to finish the

projects, despite Bowser making multiple telephone calls to Emeigh

requesting that he do so during September and October 2012. Additionally,

Bowser testified that Emeigh indicated he would be purchasing trusses from

Berlin Lumber, but when she contacted the company, no record of such a

purchase existed.

       Bowser contacted Emeigh once more, in November 2012, before she

resorted to contacting the police.             Emeigh indicated that he would try to
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11
    For an agreed-upon value of $10,900.00, Bowser transferred title to two
vehicles to Emeigh and gave him a wood burner and a glass block. The
vehicles included a 2000 Chevrolet Silverado valued at $7,500 and a 1984
Jeep CJ-5 valued at $3,000. The wood burner and glass block were valued
at $200.00 each. N.T. Habeas Corpus Hearing, 4/16/14, at 46; see also
Commonwealth’s Exhibit G. In addition to the vehicles and other items, it
appears that Bowser gave Emeigh an additional $6,200.00 based upon the
list of extra items provided to Emeigh in Exhibit G, although she did not
testify to this fact at the motion hearing beyond indicating that Emeigh
asked her for more money each time he came to her house.



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finish the work; however, he never returned after this telephone call.

Bowser contacted the Pennsylvania State Police, and an investigation

revealed that Emeigh’s company, Emeco Contracting, did not have a valid

contractor’s license and that Emeigh had not repaid any of the down

payment money to Bowser.

       On November 28, 2012, Emeigh was charged with theft by deception

and home improvement fraud based upon receiving advance payment for

services and failing to perform or provide such services.       After multiple

continuances requested by Emeigh, he filed a petition for writ of habeas

corpus on February 10, 2014, contending that the Commonwealth could not

set forth a prima facie case against him regarding either charge. Following

oral argument on April 16, 2014, the trial court granted the petition on

August 14, 2014, as to all of the proposals outlined above except for

Proposal #2713, for living room renovations.

       The Commonwealth timely filed a notice of appeal and court-ordered

concise statement of orders complained of on appeal pursuant to Pa.R.A.P.

1925(b). On appeal, the Commonwealth raises the following issues for our

review:

       1. Whether the lower court erred in granting partial relief[12] on
          [Emeigh’s] Motion for Writ of Habeas Corpus/Motion to
____________________________________________


12
    The Commonwealth has certified that the order in question will
substantially handicap the prosecution in accordance with Pa.R.A.P. 311(d)
(the Commonwealth may take an appeal “from an order that does not end
(Footnote Continued Next Page)


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          Quash, when sufficient evidence was presented to establish a
          prima facie case as to both crimes charged against [Emeigh?]

      2. Whether the lower court erred in granting partial relief on
         [Emeigh’s] Habeas Corpus/Motion to Quash, by dismissing
         evidence related to five specific individual contracts/proposals
         (more akin to Motion in Limine), when Commonwealth
         charged [Emeigh] with only one count of Receiving Advanced
         Payment for Services and Failing to Perform or Provide such
         Services, . . . and one count of Theft by Deception, . . . on a
         theory of course of conduct and did not charge [Emeigh]
         based on each individual contract?

      3. Whether the lower court erred in granting relief akin to a
         Motion in Limine when the Defendant did not request such
         relief in its Motion for Writ of Habeas Corpus or during the
         hearing related to same?

Brief for Appellant, at 5.

      Our review of the decision to grant or deny a petition for writ of

habeas corpus “is limited to deciding whether a prima facie case was

established.”   Commonwealth v. Landis, 48 A.3d 432, 444 (Pa. Super.

2012).

      [T]he evidence should be such that if presented at trial, and
      accepted as true, the judge would be warranted in allowing the
                       _______________________
(Footnote Continued)

the entire case where the Commonwealth certifies in the notice of appeal
that the order will terminate or substantially handicap the prosecution”); see
also Commonwealth v. White, 910 A.2d 648, 655 (Pa. 2006) (“when an
order terminates or has the practical effect of terminating some or all of the
Commonwealth’s case, or substantially handicaps the Commonwealth’s case,
and the Commonwealth has certified the same in good faith, the
Commonwealth is entitled to an interlocutory appeal as of right under Rule
311(d)”). The practical effect of the order in the instant matter is to
handicap the Commonwealth’s case by greatly reducing the basis for the
charges against Emeigh. Thus, we have jurisdiction over this appeal.




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      case to go to the jury. . . . [W]e must view the evidence in the
      light most favorable to the Commonwealth, and we are to
      consider all reasonable inferences based on that evidence which
      could support a guilty verdict. The standard clearly does not
      require that the Commonwealth prove the accused’s guilt beyond
      a reasonable doubt at this stage.

Id. (emphasis in original).        “Rather, the prima facie standard requires

evidence of the existence of each and every element of the crime charged.”

Commonwealth v. Marti, 779 A.2d 1177, 1180 (Pa. Super. 2001).

However, “the weight and credibility of the evidence are not factors at this

stage, and the Commonwealth need only demonstrate sufficient probable

cause to believe the person charged has committed the offense.” Id.

      Theft by deception occurs when an individual “obtains or withholds

property of another by deception.” 18 Pa.C.S. § 3922(a). A person deceives

another if he intentionally “creates or reinforces a false impression, including

false impressions as to law, value, intention or other state of mind; but

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. § 3922(a)(1). Home improvement fraud has similar

elements, and occurs if a person, with intent to defraud or with knowledge

that he is facilitating a fraud,

      receives any advance payment for performing home
      improvement services or providing home improvement materials
      and fails to perform or provide such services or materials when
      specified in the contract taking into account any force majeure or
      unforeseen labor strike that would extend the time frame or
      unless extended by agreement with the owner and fails to return
      the payment received for such services or materials which were
      not provided by that date.


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73 P.S. § 517.8(a)(2).

      Whether the Commonwealth presented sufficient prima facie evidence

of the charges against Emeigh is dispositive of all of the issues raised in this

appeal.   It is obvious from the record that Emeigh obtained a significant

amount of money from Bowser and completed very little work in exchange.

Thus, whether the evidence was sufficient to make out a prima facie case in

the instant matter depends upon whether the Commonwealth presented

evidence that Emeigh intentionally deceived Bowser.

      We note that “[c]riminal intent may be established by either direct or

circumstantial evidence.”    Commonwealth v. Parker, 564 A.2d 246, 249

(Pa. Super. 1989).       While failure to perform a promise alone does not

support an inference of guilt, failure to perform “may be considered with . . .

other evidence in determining whether appellant intended to defraud.”

Commonwealth v. Quartapella, 539 A.2d 855, 857 (Pa. Super. 1988).

Where it is alleged that deception occurred regarding intent to perform a

contract, the intent not to perform must have existed at the time the

contract was executed.      See Commonwealth v. Gallo, 373 A.2d 1109,

1111 (Pa. 1977) (“if appellant’s conviction for theft by deception is to be

sustained, it must be because appellant never intended to perform his part

of the contract”). Similarly, home improvement fraud requires intent not to

perform or knowledge that performance would not take place when the

contract is executed. See 73 P.S. § 517.8(a).




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       Here, Emeigh performed a small portion of the work immediately after

Bowser signed the proposals and completed no further work despite

repeated promises do so. We note that Emeigh appears to have committed

a number of technical violations of HICPA in preparing and executing the

proposals, including holding himself out as a licensed contractor when he did

not have a current license.13 While this violation is not necessarily criminal

in nature, the Commonwealth contends that Bowser relied upon this

misrepresentation in paying Emeigh significant down payments for home

improvement work.

       The Commonwealth also asserts that Emeigh engaged in a deceptive

scheme by preparing numerous proposals, since this enabled him to confuse

Bowser regarding her obligations. The record reveals that Bowser wrote out

checks to pay the down payments, but each down payment does not have a

correlating check.       Instead, some of the checks are for several down

payments, some are for partial down payments, and together they add up to

an amount that includes additional money not accounted for in the

proposals.     See n. 10, supra.         Bowser testified that Emeigh continually

asked her for more money, despite completing no further work and not


____________________________________________


13
   See 73 P.S. § 517.9(1). Additionally, Emeigh accepted more than one-
third of the contract price as a down payment in contracts involving more
than $5,000, see 73 P.S. § 517.9(10), and prepared proposals without start
and end dates, see 73 P.S. § 517.7(a)(6).




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J-A23029-15



purchasing required materials. When Bowser ran out of cash, Emeigh

accepted vehicles and other goods for payment. The numerous proposals

and additional payments form the basis of the Commonwealth’s theory that

Emeigh used a “deceptive scheme to defraud.” Quartapella, supra at 857

(scheme      involving   repeated     requests   for   loans     from     victim,

misrepresentation of reasons for advances, and no attempts to repay loans

provided sufficient evidence to support theft by deception conviction).

      Based upon the evidence outlined above, the trial court determined

that the Commonwealth presented a prima facie case on both counts, but

only as to proposal #2713, for living room renovations.          The trial court

determined that proposal #2713 was distinguishable from the other

proposals based upon the request for additional payment resulting in Bowser

transferring title to two vehicles and giving other items to Emeigh for

payment.     However, the trial court’s rationale for rejecting the majority of

the proposals is flawed, since Emeigh was not charged with separate counts

for each proposal and the trial court was not tasked with determining

whether each proposal resulted in a prima face case.           Indeed, the trial

court’s order simply bears no relation to the manner in which Emeigh was

charged.    Moreover, the Commonwealth’s theory of the case includes a

scheme or course of conduct involving all of the proposals.       Quartapella,

supra.     Thus, we find the trial court erred in partially granting Emeigh’s

petition for writ of habeas corpus.




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      Order affirmed in part and vacated in part.   Case remanded.

Jurisdiction relinquished.

Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 11/6/2015




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