J-A06014-20


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

    COMMONWEALTH OF PENNSYLVANIA                   IN THE SUPERIOR COURT
                                                      OF PENNSYLVANIA
                             Appellee

                        v.

    JOHN FUNARI

                             Appellant                 No. 654 EDA 2019


        Appeal from the Judgment of Sentence entered January 30, 2019
             In the Court of Common Pleas of Philadelphia County
                Criminal Division at No: CP-51-CR-0003962-2017


BEFORE: STABILE, J., KING, J., and STEVENS, P.J.E.*

MEMORANDUM BY STABILE, J.:                              FILED JULY 13, 2020

        Appellant, John Funari, appeals from the judgment of sentence the

Court of Common Pleas of Philadelphia County imposed on January 30, 2019.

Appellant argues that the trial court erred in not granting his post-sentence

motion on grounds of after-discovered evidence. We disagree. Accordingly,

we affirm.

        The trial court summarized the relevant background as follows.

        On April 24, 2012, Jeffrey Papa and Khalil Mir’s rental property,
        located at 1938 Green Street, in the city and county of
        Philadelphia, sustained damage from a wind storm. As a result of
        the damages, the business partners came into contact with
        Appellant [], a public adjuster. Mr. Mir was acquainted with
        Appellant, and they were friends for several years. Appellant met
        with Mr. Mir at the property, assessed the damages, and later
        discussed the process of filing an insurance claim using a public
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*   Former Justice specially assigned to the Superior Court.
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     adjuster. Mr. Papa testified that he met with Appellant once with
     his partner, Mr. Mir. During this discussion, Mr. Papa testified that
     he, Mr. Mir, and Appellant agreed to an 80/20 split of funds once
     the insurance company issued them a check.[fn 1] Mr. Papa further
     testified that this agreement was reduced to writing, but never
     received a copy of such agreement. This was the last time Mr.
     Papa heard from Appellant.          On December 12, 2012, after
     attempting to get into contact with Appellant numerous times, Mr.
     Papa decided to contact his insurance company. He learned that
     a settlement check for $4,884.75 was already issued and mailed
     to Appellant. Additionally, the insurance company received a
     letter of representation signed by Mr. Papa and Mr. Mir, which
     permitted Appellant to receive the check on their behalf. Again,
     Mr. Papa continued to reach out to Appellant because he and Mr.
     Mir had not received their share of the settlement. At the time of
     the waiver trial, Mr. Papa had still never heard back from Appellant
     and never received any funds from the settlement.
            As it turns out, a check for $4,884.75 was indeed issued to
     Mr. Papa, Mr. Mir, and Appellant, on October 1, 2012. On October
     5, 2012, Appellant signed and deposited that check into his TD
     account. However, on October 8, 2012, Appellant wrote Mr. Mir
     the following email:

           The claim was/is open, has been inspected, & last we
           spoke I informed you that we are awaiting a check.
           You are getting $3175 in your pocket, which is for the
           interior damages/repairs.
           We will address any & all discrepancies in an effort to
           obtain additional funds.
           In the future please save & forward any and all work
           related emails to this: JohnAlbertPA@live.com.

     Appellant further testified that he wrote a check out to Mr. Papa
     and Mr. Mir but did not mention any effort to ensure the payment
     was received and deducted from his TD account.
            Despite multiple attempts to notify Appellant that Mr. Papa
     and Mr. Mir never received a check for any amount, Appellant
     failed to provide any portion of their share from the settlement of
     funds.[fn 2]
            At the waiver trial before Judge Mazzola, on September 25,
     2018, Appellant was found guilty of failure to make required
     disposition of funds under 18 Pa.C.S.A. § 3927. Subsequently,
     both parties agreed to a stipulated trial for the remaining charges
     of 63 [P.S.] § 1607 and 63 [P.S.] § 1602 not disposed of at the

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      first trial date. In the interim, on December 4, 2018, Appellant
      filed a post-verdict (sic) motion alleging that he found evidence –
      that he was not privy to during his waiver trial – that would negate
      the elements of theft by failure to make required disposition of
      funds and establish Appellant’s innocence.
             On January 30, 2019, [the trial court] heard and denied
      Appellant’s post-verdict motion for a new trial. This appeal now
      follows.

      [fn1] The percentage split of funds to be received is contradicted. Appellant
      testifies that it was not an 80/20 split As Mr. Papa claimed, but a 65/35 split.

      [fn2] On March 1, 2013 and March 14, 2013, the Pennsylvania Insurance
      Department notified Appellant, through certified and First-class mail, that there
      were allegations that he failed to remit claim proceeds to Mr. Mir and Mr. Papa.

Trial Court Opinion, 9/26/19 at 1-3 (some footnotes omitted) (citations to the

record omitted).

      Appellant raises two issues for our review. First, Appellant argues the

trial court erred in not granting his motion for a new trial on after-discovered

grounds. Second, Appellant argues that the trial court erred in not holding a

hearing on the above motion.

      Pennsylvania Rule of Criminal Procedure 720, relating to post–sentence

procedures and appeal, provides in pertinent part: “A post–sentence motion

for a new trial on the ground of after–discovered evidence must be filed in

writing promptly after such discovery.” Pa.R.Crim.P. 720(C). The Comment

to Rule 720 states that:

      [A]fter-discovered evidence discovered during the post-sentence
      stage must be raised promptly with the trial judge at the post-
      sentence stage; after–discovered evidence discovered during the
      direct appeal process must be raised promptly during the direct
      appeal process, and should include a request for a remand to the
      trial judge.


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Pa.R.Crim.P. 720, Comment.

       As noted above, the after-discovered evidence at issue here was

discovered and raised after trial, but before sentencing.      Accordingly, the

matter was raised properly before the trial court. Additionally, there are no

questions about the promptness of the claim.        Thus, we may address the

merits of Appellant’s post-sentence motion.

       The parties and the trial court all agree that the pertinent test for

deciding whether Appellant is entitled to a new trial is well-established. For

convenience, as did Appellant and the trial court, we also rely on Castro.1

       To obtain relief based on after-discovered evidence, Appellant must

demonstrate that “[t]he evidence: (1) could not have been obtained prior to

trial by exercising reasonable diligence; (2) is not merely corroborative or

cumulative; (3) will not be used solely to impeach a witness’s credibility; and

(4) would likely result in a different verdict.”   Castro, 93 A.2d at 821 n.7

(citing Commonwealth v. Pagan, 950 A.2d 270, 282 (Pa. 2008)). “As this

test is conjunctive, failure to establish one prong obviates the need to analyze

the remaining ones.” Commonwealth v. Solano, 129 A.3d 1156, 1180 (Pa.

2015) (citing Pagan, 950 A.2d at 292-93). “Unless there has been a clear

abuse of discretion, an appellate court will not disturb the trial court’s denial

of an appellant’s motion for a new trial based on after-discovered evidence.”



____________________________________________


1   Commonwealth v. Castro, 93 A.3d 818 (Pa. 2014).

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Commonwealth v. Chamberlain, 30 A.3d 381, 416 (Pa. 2011). Finally, “the

proposed new evidence must be producible and admissible.”            Id. at 414

(internal quotations and citation omitted).

       As noted above, the trial court allowed argument on Appellant’s motion,

at which Appellant was able to present a carbon copy of a check he mailed to

his clients as their payment on their insurance claim, the transmittal letter for

the check indicating that he made the required disposition by USPS mail, and

“substantial evidence why these documents were not available to him prior to

his trial.” See Appellant’s Rule 1925(b) Statement, 5/14/19.

       According to Appellant, the copy of the check and the transmittal letter

proved that Appellant did in fact make the required disposition of funds to his

clients.2 The problem with Appellant’s argument is that there already was

evidence in the record that Appellant made payment.3 Thus, the copy of the

check and the transmittal letter, assuming they would be admissible,4 see



____________________________________________


2 In his motion for a new trial, Appellant listed several additional documents
as after-discovered evidence. Most of them, however, have no relevance to
the matter at issue here. As the Appellant’s Rule 1925(b) concise statement
and the statement of questions involved on appeal mention only those two
documents as relevant of our decision, we will limit our review to them.

3At trial, Appellant testified that a payment in the form of check from his TD
account was issued to Mr. Mir and Mr. Papa. See N.T. Trial, 9/25/19, at 71-
72.

4It appears the trial court treated Appellant’s after-discovered evidence as
admissible. However, the trial court did not provide any explanation as to
how it reached that conclusion.

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Chamberlain, 30 A.3d at 414, would only have corroborated his testimony.

In his brief, Appellant admits that the after-discovered evidence at issue here

is both corroborative and cumulative. Appellant’s Brief, at 13-14. However,

he also argues that the evidence is not “merely” corroborative and cumulative

“in the formulation of Castro”, but is in fact dispositive. Id.

      The argument is without merit. First, it is unclear how the suggested

distinction (i.e., merely corroborative and cumulative vs. corroborative and

cumulative) helps Appellant.        Second, and more importantly, even if

“dispositive,” the evidence still had to meet all the Castro prongs, as

acknowledged by Appellant. As explained, Appellant failed to meet the Castro

test. Accordingly, the trial court did not err in finding the proffer corroborative

and cumulative of the evidence already existing in the record. See Trial Court

Opinion, 9/26/19, at 6.

      In its opinion, the trial court additionally found that the after-discovered

evidence would not likely result in a different verdict. Specifically, the trial

court noted:

      If taken as true, that the evidence is what Appellant’s purports it
      to be, it would not prompt a different verdict on retrial. The
      evidence does not explain why Appellant failed to respond to Mr.
      Papa months after Appellant claims to have sent the check. The
      newly discovered evidence also does not negate that Appellant
      was notified twice by the Pennsylvania Insurance Department in
      March of 2013 because Mr. Papa and Mr. Mir had not received
      their funds. Furthermore, Appellant was aware, through the
      Department, of Mr. Papa’s multiple attempts to contact him, and
      even more so by his own bank statements, that Mr. Papa and Mr.
      Mir never received their funds.


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Trial Court Opinion, 9/26/19, at 6.

      In response to the above analysis, Appellant argues that it is irrelevant

for purposes of determining criminal liability for theft by failing to make

required disposition of funds whether the recipient of the dispositions ever

received the funds. Appellant misreads the trial court’s analysis. The trial

court’s analysis is in fact focused on whether Appellant made the required

dispositions.   To the extent the trial court notes that the recipients never

received payment from Appellant, this fact is mentioned only as a factor

undermining Appellant’s credibility regarding the alleged payment. We agree

with the trial court analysis and conclusions.       We conclude, therefore,

Appellant failed to meet the Castro test.

      Regarding Appellant’s claim that the trial court failed to hold a hearing

on his after-discovered evidence claim, we agree with the Commonwealth.

Appellant waived this claim by failing to include it in his Rule 1925(b)

statement.      See Pa.R.A.P. 1925(b)(4)(vii) (“Issues not included in the

Statement and/or not raised in accordance with the provisions of this

paragraph (b)(4) are waived.”).

      Judgment of sentence affirmed.




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J-A06014-20




Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 7/13/20




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