J-S24008-16

                               2016 PA Super 113

COMMONWEALTH OF PENNSYLVANIA               :       IN THE SUPERIOR COURT OF
                                           :             PENNSYLVANIA
              v.                           :
                                           :
ERIC CHRISTOPHER HILL,                     :
                                           :
                   Appellant               :           No. 1416 MDA 2015

              Appeal from the Judgment of Sentence July 13, 2015
                 in the Court of Common Pleas of Berks County,
               Criminal Division, No(s): CP-06-CR-0003491-2014

BEFORE: GANTMAN, P.J., BOWES and MUSMANNO, JJ.

OPINION BY MUSMANNO, J.:                                FILED MAY 31, 2016

        Eric Christopher Hill (“Hill”) appeals from the judgment of sentence

entered following his conviction of one count each of theft by unlawful taking

or disposition, deceptive or fraudulent business practices, and home

improvement fraud.1 We vacate Hill’s judgment of sentence and remand for

resentencing.

        The trial court summarized the relevant factual history of this appeal

as follows:

              In the spring of 2014, Carmen and Alexis Rodriguez
        decided to renovate the basement of their home. Notes of
        Testimony (“N.T.”), July 13, 2015[,] at 9, 53. The couple had
        saved money and intended to finish the basement and to add a
        bathroom, both with the aim of improving the home’s value. Id.
        They contacted some contractors, and several came to the home
        to provide estimates. Id.
              In mid-April, a flyer advertising [Hill’s] home improvement
        business was left on the couple’s doorstep. Id. at 9. Carmen
        called the advertised phone number on April 18, 2015[,] and

1
    See 18 Pa.C.S.A. §§ 3921(a), 4107(a)(2); 73 P.S. § 517.8(a)(2).
J-S24008-16


     spoke with [Hill] about arranging an estimate. Id. at 10. [Hill]
     came to the house later that afternoon, and Carmen informed
     [Hill] that their budget necessitated a cost-effective finish. Id.
     at 12.      [Hill] spent approximately thirty minutes in the
     basement. Id. at 12, 55.
           Following the purported assessment, [Hill] provided an
     estimate of $7,900 to finish the basement and to add a
     bathroom. Id. at 13, 55. Carmen and Alexis accepted the offer
     and asked [Hill] when he could start; he suggested midway
     through the next week in order to pull permits. Id. [Hill]
     required half the payment, $3,950.00, in advance.         They
     arranged for [Hill] to pick up the payment the next afternoon,
     which he did. Id. at 14. That day, [Hill] provided a more
     extensive and detailed contract. Id. at 15. [Hill] subsequently
     returned to his vehicle, and Carmen overheard its driver say,
     “Did you get it?” Id.
            On the subsequent Wednesday morning, [Hill] arrived
     promptly at 8 a.m. Id. at 16. There was some confusion as to
     which flooring Carmen wanted installed, so they put off work
     until the next day. Id. at 16-17, 55-56. On Thursday morning,
     [Hill] arrived at 8 a.m. in a gray, older van without any company
     insignia. Id. at 18. [Hill] went into the basement with two other
     men, equipped with tools. Id. Carmen heard the men chipping
     the cement of the basement, which was an expected part of the
     work to be done. Id. at 18-19. Carmen then left for work, and
     [Hill] remained at the home unsupervised. Id. at 19.
            Later that day, [Hill] texted Carmen that he was having
     difficulty with regards to permits. Id. at 21. This made Carmen
     suspicious, so she contacted the appropriate government office;
     she learned that no one had pulled the permits for her property.
     Id. This was later confirmed by Officer James Burkhart. Id. at
     71-72. Carmen called Alexis around 3:00 p.m., and he reported
     that the men had done practically no work.            Id. at 22.
     Specifically, some cement had been chipped from certain areas
     of the floor. Id. at 49. Alexis also discovered that the contract,
     which had been on a table upstairs, was now missing. Id. at 49,
     56-57.
            Carmen and Alexis repeatedly attempted to contact [Hill]
     because they were now extremely suspicious and concerned.
     [Hill] ignored several messages and calls throughout the day,
     though he eventually responded to a budget-related question
     from Carmen. Id. at 23-24. [Hill] continued to ignore calls from
     Carmen and Alexis throughout the following week. Id. at 24-


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      26,58. [Hill] eventually answered a call, and Carmen requested
      a refund of their deposit. Id. [Hill] stated that he would “make
      this request to the main office in Allentown,” and that they would
      receive a check in the mail in five to seven business days. Id. at
      26, 59. After five days, Carmen tried to call [Hill], and his phone
      had been disconnected. Id. at 27. [Hill] never returned any of
      the deposit. Id.

Trial Court Opinion, 10/19/15, at 1-3.

      Hill was subsequently arrested and charged with the above-referenced

offenses. On July 13, 2015, following a jury trial, Hill was convicted of all

charges.   On that same day, the trial court sentenced Hill to consecutive

prison terms of one to five years on each of his convictions, for an aggregate

prison sentence of three to fifteen years. On July 22, 2015, Hill filed a post-

sentence Motion, which the trial court denied. Thereafter, Hill filed a timely

Notice of Appeal and a court–ordered Pa.R.A.P. 1925(b) Concise Statement

of Errors Complained of on Appeal.

      On appeal, Hill raises the following issues for our review:

      A. Whether the trial court erred in finding that the three charges
         did not merge for sentencing purposes[,] since the charges
         arose from a single act and all of the elements of theft by
         unlawful taking [or disposition] must be met in order to
         convict [Hill] of deceptive or fraudulent business practices and
         home improvement fraud[?]

      B. Whether the trial court erred in finding that the charge of
         home improvement fraud did not merge with deceptive or
         fraudulent business practices[,] since the charges arose from
         a single act and all of the elements of deceptive or fraudulent
         business practices must be met in order to convict [Hill] of
         home improvement fraud[?]

Brief for Appellant at 6 (some capitalization omitted).



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      A claim that crimes should have merged for sentencing purposes

raises a challenge to the legality of the sentence; therefore, our standard of

review is de novo and our scope of review is plenary. See Commonwealth

v. Quintua, 56 A.3d 399, 400 (Pa. Super. 2012).

      Our legislature has defined the circumstances under which convictions

for separate crimes may merge for the purpose of sentencing.

      Merger of sentences. No crimes shall merge for sentencing
      purposes unless the crimes arise from a single criminal act and
      all of the statutory elements of one offense are included in the
      statutory elements of the other offense. Where crimes merge
      for sentencing purposes, the court may sentence the defendant
      only on the higher graded offense.

42 Pa.C.S.A. § 9765.

            To determine whether offenses are greater and lesser
      included offenses, we compare the elements of the offenses. If
      the elements of the lesser offense are all included within the
      elements of the greater offense and the greater offense has at
      least one additional element, which is different, then the
      sentences merge. If both crimes require proof of at least one
      element that the other does not, then the sentences do not
      merge.

Commonwealth v. Nero, 58 A.3d 802, 806 (Pa. Super. 2012) (internal

citations omitted).

      As Hill’s claims are related, we will address them together. In his first

issue, Hill contends that the trial court erred by determining that the charges

did not merge because the mens rea requirement for each of the charges is

different.   Brief for Appellant at 14.   Hill asserts that, while the intent to

deprive is not expressly stated as an element of deceptive or fraudulent



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business practices or home improvement fraud, these offenses cannot be

committed without that intent. Id. Hill claims that, because these offenses

require an intent to deprive the owner of the money they paid for services,

all of the elements of theft by unlawful taking are included in the elements of

deceptive or fraudulent business practices and home improvement fraud.

Id.   Utilizing this reasoning, Hill argues that the charges should have

merged for sentencing purposes. Id.

      In his second claim, Hill points out that the trial court acknowledged

that it erred in finding that the charges of deceptive or fraudulent business

practices and home improvement fraud did not merge for sentencing

purposes.    Id. at 15.    Hill contends that the charge of deceptive or

fraudulent business practices requires the delivery of “less than the

represented quantity or service.”    Id. (citing 18 Pa.C.S.A. § 4107(a)(2)).

Hill further contends that, as applied to him, the charge of home

improvement fraud requires a person to receive “any advance payment for

performing home improvement services … and fail[ing] to perform … such

services.”   Brief for Appellant at 15 (citing 73 P.S. § 517.8(a)(2)).     Hill

asserts that, based on these provisions, both statutes require the failure to

perform a service to which the parties had previously agreed.         Brief for

Appellant at 15. While Hill acknowledges that the wording of the statutes is

not identical, he nevertheless claims that both require the same conduct,

although home improvement fraud has an additional requirement that the



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service to be performed is related to home improvement. Id. On this basis,

Hill argues that the two charges should have merged at sentencing because

all of the elements of deceptive or fraudulent business practices must be

met in order to convict a defendant of home improvement fraud. Id.

      It is undisputed that Hill’s crimes arose from the same criminal act.

Thus, the only question is whether the elements of one or more offenses are

subsumed within the elements of the other offenses. The three crimes for

which Hill was convicted are defined as follows:

      Theft by unlawful taking or disposition.

      (a) Movable property.
      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).2

      Deceptive or fraudulent business practices

      (a) Offense defined.
      A person commits an offense if, in the course of business,
      the person:

                                      ***

            (2) Sells, offers or exposes for sale, or delivers less
            than the represented quantity of any commodity or
            service;




2
  “Movable property” is defined as “[p]roperty[,] the location of which can be
changed, including things growing on, affixed to, or found in land, and
documents although the rights represented thereby have no physical
location.” 18 Pa.C.S.A. § 3901.



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18 Pa.C.S.A. § 4107(a)(2).     Fraud, which includes a wrongful intent to

deceive, is an element of the crime of deceptive business practices.

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

      Home improvement fraud.

      (a)   OFFENSE DEFINED.
      A person commits the offense of home improvement fraud if,
      with intent to defraud or injure anyone or with knowledge
      that he is facilitating a fraud or injury to be perpetrated by
      anyone, the actor:
                                      ***

            (2) 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;

73 P.S. § 517.8(a)(2).

      Here, the trial court determined that, although the charges against Hill

arose out of a single act, not all the statutory elements of theft by unlawful

taking or disposition coincided with those of deceptive business practices and

home improvement fraud. See Trial Court Opinion, 10/19/15, at 4-6. We

agree with the trial court’s determination that the theft violation did not

merge with the other two violations for sentencing purposes.           The theft

violation requires proof of an element that the other violations do not:

namely, that the defendant exercised unlawful control over moveable



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property. See 18 Pa.C.S.A. § 3921(a). Additionally, the crimes of deceptive

business practices and home improvement fraud require proof of additional

elements that the theft violation does not require (i.e., course of business,

failure to perform services or provide materials, etc.). Thus, merger was not

appropriate.       See Nero, 58 A.3d at 806 (providing that if both crimes

require proof of at least one element that the other does not, then the

sentences     do    not   merge).      Therefore,   we   affirm   the   trial   court’s

determination that Hill’s sentence for theft by unlawful taking or disposition

was not appropriate for merger with his other convictions. See Trial Court

Opinion, 10/19/15, at 4-6.

      As to Hill’s claim that the statutory elements of deceptive or fraudulent

business practices coincided with those of home improvement fraud, the trial

court stated in its Opinion, without explanation, that these violations should

have merged for sentencing purposes, and that it had erred by failing to

merge them when sentencing Hill. See Trial Court Opinion, 10/19/15, at 6.

      Proof of deceptive or fraudulent business practices requires that a

defendant (1) with a wrongful intent to deceive; (2) “in the course of

business;” (3) “sells, offers or exposes for sale, or delivers less than the

represented    quantity     of   any   commodity    or   service.”      18   Pa.C.S.A.

§ 4107(a)(2); see also Eline, 940 A.2d at 433.                       Proof of home

improvement fraud requires that a defendant (1) “with intent to defraud or

injure anyone or with knowledge that he is facilitating a fraud or injury to be



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perpetrated by anyone;” (2) when “performing home improvement services

or providing home improvement materials;” (3) “fails to perform or provide

such services or materials;” (4) “receives any advance payment;” and (5)

“fails to return the payment received for such services or materials which

were not provided.” See 73 P.S. § 517.8(a)(2).

      Comparing the elements of these two offenses, we conclude that all

three elements of deceptive or fraudulent business practices are all included

within the first three elements of home improvement fraud, and home

improvement fraud has at least one additional element. See Nero, 58 A.3d

at 806; see also Commonwealth v. Goins, 867 A.2d 526, 530 (Pa. Super.

2004) (holding that a higher degree of culpability for one offense does not

necessarily mean it requires proof of a fact which the other offense does

not). Therefore, Hill’s convictions for these crimes should have merged for

sentencing purposes.    See Nero, 58 A.3d at 806. Because vacating Hill’s

sentence for deceptive or fraudulent business practices may disrupt the trial

court’s overall sentencing scheme, we vacate his judgment of sentence and

remand for resentencing. See Commonwealth v. Barton-Martin, 5 A.3d

363, 370 (Pa. Super. 2010) (providing that where vacating a sentence

disrupts a trial court’s overall sentencing scheme, this Court will remand to

the trial court for resentencing).

      Judgment of sentence vacated.        Case remanded for resentencing

consistent with this Opinion. Jurisdiction relinquished.



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Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary

Date: 5/31/2016




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