J-S51036-14

NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA,             :      IN THE SUPERIOR COURT OF
                                          :            PENNSYLVANIA
                   Appellee               :
                                          :
             v.                           :
                                          :
STEVEN DOUGLAS GEBHART,                   :
                                          :
                   Appellant              :           No. 1773 MDA 2013

      Appeal from the Judgment of Sentence entered on February 4, 2011
                 in the Court of Common Pleas of York County,
                Criminal Division, No. CP-67-CR-0005854-2008

BEFORE: BOWES, OTT and MUSMANNO, JJ.

MEMORANDUM BY MUSMANNO, J.:                    FILED SEPTEMBER 22, 2014

                                                             the judgment of

sentence imposed following his conviction of theft by deception, corrupt

organizations, and deceptive business practices.1 We affirm.

        Because the parties are amply familiar with the facts underlying this

case, we will not set them forth at length herein.2    In sum, Gebhart had

incorporated five separate companies, all of which were involved in the




1
    See 18 Pa.C.S.A. §§ 3922(a)(3), 911(b)(3), 4107(a)(2).
2
 This Court previously set forth the voluminous evidence presented against
Gebhart in a Memorandum pertaining to the direct appeal filed by one of
            -                                See Commonwealth v. Kile,
1359 MDA 2011 (Pa. Super. filed Sept. 24, 2012) (unpublished
Memorandum at 3-14).
J-S51036-14

                                              3
                                                  Beginning in 2004, Gebhart

began to accept money from customers for construction projects he knew

that he could not perform due to financial difficulties. Gebhart was aided in

this regard by Kile, his employee and then-girlfriend.      The Commonwealth

pres

paid Gebhart for work or materials and never received the promised goods

or services. These witnesses all essentially testified that Gebhart and/or his

employees had failed to complete the pole buildings for which Gebhart had

accepted payment, or never performed any work at all. The Commonwealth



his    fraudulent   business   practices.   Additionally,   the   Commonwealth

introduced into evidence recordings of conversations between Gebhart and

Kile, while Gebhart was in jail, wherein they discussed their fraudulent



incarceration.

       After the Commonwealth charged Gebhart with the above-mentioned

offenses, the matter was scheduled for a jury trial. Gebhart subsequently

filed several Pre-Trial Motions, including (1) a Motion seeking to dismiss the

charges against him based on his claim of selective and vindictive



3

basically structures built on top of the ground without a foundation and
supported by poles. Pole buildings include garages, barns, and roofed picnic
            Kile, 1359 MDA 2011 (unpublished Memorandum at 4).


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J-S51036-14

Motion to dismiss the charges based upon the running of the applicable

statute of limitations; and (3) a Motion to dismiss the charges because of

double jeopardy. The trial court denied all of these Motions.




representing Gebhart due to a conflict of interest because Attorney

Ostrowski had previously represen                               -defendant, in

connection with this case. Thereafter, Gebhart retained alternate counsel.

       At the conclusion of the trial held in November 2010, the jury found

Gebhart guilty of the above-mentioned offenses. The trial court sentenced



counsel did not timely file a direct appeal.

       Following a procedural history that is not relevant to this appeal, in

April 2013, Gebhart filed a pro se Petition under the Post Conviction Relief
               4
                   seeking reinstatement of his direct appeal rights, nunc pro

tunc. The PCRA court granted relief, permitting Gebhart to file the instant

appeal nunc pro tunc, and appointing him counsel. Gebhart timely filed a

Notice of Appeal.      In response, the trial court ordered Gebhart to file a

Pa.R.A.P. 1925(b) concise statement of errors complained of on appeal, and

Gebhart timely filed a Concise Statement.

        On appeal, Gebhart presents the following issues for our review:


4
    See 42 Pa.C.S.A. §§ 9541-9546.


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J-S51036-14

        I.   Did the [trial
             for dismissal based upon selective and vindictive
             prosecution?

       II.   Did the [trial c]ourt err in not dismissing the charges
             against [Gebhart,] as they were barred by the
             applicable statute of limitations?

      III.   Did the [trial c]ourt err in removing [Attorney
             Ostrowski,] thus unjustly denying [Gebhart] counsel of
             his choosing?

      IV.    Did the [trial c]ourt err in not dismissing the case or
             charges against [Gebhart] as a result of double
             jeopardy?

       V.    Did the jury err in finding [Gebhart] guilty[,] as that
             decision was not supported by sufficient evidence in
             that the Commonwealth failed to meet the elements
             necessary for the offenses?

Brief for Appellant at 5 (issues numbered).

      Gebhart first argues that the trial court erred in denying his

Selective/Vindictive Prosecution Motion. Id. at 16-18. Gebhart points out

that in September 2006, he filed a federal civil rights action against a

Northern York Regional police officer and a Pennsylvania State Trooper, and,

according to Gebhart, the Commonwealth improperly filed the above-

mentioned charges against him in retaliation for his civil rights action. Id. at

16.

      Upon review, we conclude that Gebhart has waived his challenge to

the denial of the Selective/Vindictive Prosecution Motion because his counsel

expressly withdrew this Motion, with prejudice, at a pre-trial hearing. See




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J-S51036-14

N.T., 3/30/10, at 5-6; see also Pa.R.A.P. 302(a) (stating that an issue

cannot be raised for the first time on appeal). However, even if this claim

was not waived, we would conclude that it lacks merit.

            In order to establish a prima facie case of selective
      prosecution, [an a]ppellant must establish, first, that others
      similarly situated were not prosecuted for similar conduct, and,

      selection was based on impermissible grounds such as race,
      religion, the exercise of some constitutional right, or any other
      such arbitrary classification.                     the doctrine of
      separation of powers, the courts will not lightly interfere with an


Commonwealth v. Murphy, 795 A.2d 997, 1000 (Pa. Super. 2002)

(citations omitted).

      With regard to a claim of prosecutorial vindictiveness, this Court has

observed that there are

      two distinct situations in which the appearance of vindictiveness
      may require inquiry and judicial intervention. The first is where
      a prosecutive decision is based on discriminatory grounds of
      race, religion, national origin or other impermissible
      classification.   The other situation is where the accused is
      treated more harshly because he successfully exercised a lawful
      right, e.g.[,] the right to seek a new trial.

Commonwealth v. Smith, 664 A.2d 622, 628-29 (Pa. Super. 1995)

(citations omitted).



Motion, the trial court correctly rejected this claim, reasoning as follows:

            [Gebhart] has failed to meet his burden of establishing
      selective prosecution[,] as there was no credible evidence
      presented that others similarly situated were not prosecuted for
      similar conduct.


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J-S51036-14



                                  ***


      true that the current charges in the above-captioned matter
      were filed after [Gebhart] filed his federal civil rights lawsuit.
      However, the [trial c]ourt found the testimony of the officers and
      [the] Chief of Police to be credible and determined that there
      was a valid explanation as to why the charges were filed when
      they were filed.


      practices, the investigation was ongoing[,] even though
      [Gebhart] may not have been aware of that fact. It was clear
      from the credible evidence presented by the Commonwealth that
      these charges were not filed to punish [Gebhart] for filing the
      federal civil rights lawsuit.

Order, 6/29/13, at 2-3 (citations to record omitted). We would affirm based



issue, if it was not waived. See id.

      In his second issue, Gebhart points out that the applicable statute of

limitations for each of the offenses of which he was convicted is five years,

and, according to Gebhart, the trial court erred in refusing to dismiss these

charges, as they were barred by the statute of limitations.          See Brief for

Appellant at 19-20; see also 42 Pa.C.S.A. § 5552(b) (providing for a five-

year statute of limitations for the offenses of theft by deception, corrupt

organizations, and deceptive business practices).           Gebhart argues that

                                                     at trial regarding alleged

criminal   conduct   that   occurred   more   than   five    years    before   the




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J-S51036-14

Commonwealth filed the charges against Gebhart. See Brief for Appellant at

19-20.

     The trial court addressed this claim in its Opinion and correctly

determined that the charges were not barred by the statute of limitations.

See Trial Court Opinion, 12/27/13, at 1-6.     We affirm based on the trial

                                          See id.

     As an addendum, we observe that in situations, such as in the instant

case, where the Commonwealth charges an individual alleging a continuing

course of criminal conduct, the statute of limitations does not begin to run

until the time when the complicity of the accused in the course of conduct is

terminated.   See 42 Pa.C.                                      n offense is

committed either when every element occurs, or, if a legislative purpose to

prohibit a continuing course of conduct plainly appears, at the time when the



Each of the offenses implicated in the instant case specifically allow the

Commonwealth to proceed with the charges as a course of conduct. See 18

Pa.C.S.A. §§ 3903(c)(3), 911(c), 4107(a.1)(2).

     Next, Gebhart argues that the trial court erred, and improperly

deprived him of the counsel of his choosing, when it removed Attorney

Ostrowski. See Brief for Appellant at 20-22. We disagree.




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J-S51036-14

        The trial court addressed this claim and set forth the applicable law in

its Opinion, and we affirm on this basis in rejecting Ge

See Trial Court Opinion, 12/27/13, at 9-10.

        In his fourth issue, Gebhart contends that the prosecution violated his

double jeopardy rights. See Brief for Appellant at 22-23.5

        The trial court addressed this claim in its Opinion, and discussed the

relevant background and law.       See Trial Court Opinion, 12/27/13, at 6-9.



jeopardy violation occurred in this case. See id.

        Finally, Gebhart challenges the sufficiency of the evidence supporting

his convictions. See Brief for Appellant at 23-26. Gebhart points out that



criminal intent.   Id. at 25-26.    According to Gebhart, the Commonwealth

failed to present sufficient evidence for the jury to find intent:

        The testimony was clear that [Gebhart] had a business and that
        he entered into a number of contracts to perform services in
        exchange for money. In some of the cases, he performed some
        work[,] and in [other cases,] there was testimony that he did
        not perform any work. What was not disputed is that [Gebhart]
        was incarcerated through no fault of his own for a period of over
        one year. While in jail, he did everything possible to get work
        done on the contracts. [Gebhart] even contacted customers to
        inform them of his difficulties. There was absolutely no intent on

5
    Gebhart advances scant analysis in support of this claim. He asserts that


the Commonwealth had previously charged him with theft by deception in
other cases, and some of these charges were either dismissed or withdrawn.
Brief for Appellant at 22-23.


                                   -8-
J-S51036-14



      contract[s]. Rather[,] he did everything possible. Therefore,
      the [trial c]ourt erred in finding that the verdicts of guilty were
      supported by sufficient evidence.

Id. at 26.

      Initially, we note that

       when challenging the sufficiency of the evidence on appeal,
                               -ordered Pa.R.A.P. 1925(b) concise]
       statement must specify the element or elements upon which
       the evidence was insufficient in order to preserve the issue for
       appeal. Such specificity is of particular importance in cases

       each of which contains numerous elements that                 the
       Commonwealth must prove beyond a reasonable doubt.

Commonwealth v. Gibbs, 981 A.2d 274, 281 (Pa. Super. 2009) (citations

and quotation marks omitted).        If the appellant does not specify such

elements, the sufficiency claim is deemed waived. Id. It is also well settled



to allow the trial court an opportunity to identify the issues raised on appeal,

he/she has provided the functional equivalent of no Concise Statement at

     Commonwealth v. Cannon, 954 A.2d 1222, 1228 (Pa. Super. 2008)

(citations and internal quotation marks omitted); see also Pa.R.A.P.



ruling or error that the appellant intends to challenge with sufficient detail to

identify all pertinent issues for the judge




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J-S51036-14

      Here, Gebhart, in his Rule 1925(b) Concise Statement, raised a vague

challenge to the sufficiency of the evidence,6 in which he failed to specify the

element or elements, or even the specific crimes, forming the basis of his

sufficiency challenge. Based upon this deficiency, the trial court determined



proper review of his claim of insufficient evidence. See Trial Court Opinion,



conclude that Gebhart has waived his sufficiency challenge. See Gibbs, 981

A.2d at 281 (holding that the appell

where he failed to specify in his Rule 1925(b) concise statement which

convictions or the elements of the crimes he was challenging).7

      Judgment of sentence affirmed.

Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary

Date: 9/22/2014



6

and testimony presented at trial, by finding [Gebhart] guilty, the verdict of

Statement, 10/22/13, at ¶ 8.
7

court, would determine that it does not entitle him to relief for the reasons
                                      See Trial Court Opinion, 12/27/13, at
11-12.


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