Opinion
J-S02024-20 No. 797 MDA 2019
02-20-2020
COMMONWEALTH OF PENNSYLVANIA Appellee v. WILLIAM RONCASE Appellant
NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
Appeal from the Judgment of Sentence Entered April 16, 2019
In the Court of Common Pleas of York County
Criminal Division at No(s): CP-67-CR-0006228-2018 BEFORE: BENDER, P.J.E., KING, J., and MUSMANNO, J. MEMORANDUM BY KING, J.:
Appellant, William Roncase, appeals from the judgment of sentence entered in the York County Court of Common Pleas, following his bench trial convictions for theft by deception, theft by failure to make required disposition of funds received, and home improvement fraud. We affirm.
18 Pa.C.S.A. §§ 3922(a)(1), 3927(a); 73 P.S. § 517.8(a)(2), respectively.
The trial court opinion accurately set forth the relevant facts and procedural history of this case as follows:
Factual History
In early 2017, [Victim's] ex-husband asked her to hire a contractor to renovate a property that he owned at 1512 East Market Street, York, Pennsylvania. This was to be an extensive project; the office space on the first floor of the property and the two apartments on the second floor needed to be completely gutted and redone, and the columns on the outside of the property needed to be replaced. [Victim] knew [Appellant] through a co-worker
and had knowledge of prior contracting work that he had done. [Victim] went to the property with [Appellant] to show him what work needed to be completed and to make sure that [Appellant] would be able to do the work. Based on her prior knowledge of [Appellant's] work and the walk through of the property, [Victim] believed that [Appellant] was experienced and would be able to complete the renovations at the East Market Street property.
On September 8, 2017, [Appellant] provided [Victim] with an estimate for the project. The estimate described some of the work that needed to be completed, the cost for materials, and the cost for labor. The estimated total was $31,500. There was also a notation from [Appellant] stating the amount that was paid as a down payment.
[Victim] paid [Appellant] $1,000 on September 8, 2017, to start. Between September 8, 2017 and January 12, 2018, [Victim] paid [Appellant] a total of $19,392. Receipts were written out for each payment. Some receipts specifically said what they were for, e.g., on September 15, 2017 [Victim] paid [Appellant] $1,900 for floors. Most of the receipts just have the date and an amount.
A receipt from January 12, 2018 shows two amounts, $150 and $142, for building permits. However, Detective Hott testified that during his investigation he checked with Spring Garden Township and there were no building permits for 1512 East Market Street. ...
In September, [Appellant] told [Victim] the project would take two months. In March hardly any work had been completed. Faucets, bathroom vanities, kitchen cabinets, and toilets were purchased with money provided by [Victim]. [Appellant] allegedly returned one of the bathroom vanities because it had a chip in it. When [Victim] went back to the property the rest of the above items were missing. When she asked [Appellant] about the missing items he told her that he put the rest in his shed for "safekeeping." [Victim] never saw the items again and they ultimately needed to be repurchased. [Appellant] pulled out old radiators from the home and sold the metal as scrap; the monies for which were never given to [Victim]. By February, [Appellant] stopped answering calls and text
messages from [Victim]. In March of 2018, with little work having been completed, the property in worse shape than it was when he started, and property missing[, Victim] finally got the police involved.
Procedural History
On March 29, 2018[,] a report of Home Improvement Fraud was generated with Spring Garden Township Police. On April 13, 2018[,] Detective Hott had an initial informational meeting with [Victim]. On April 10, 2018, [Detective] Hott met [Victim] at the East Market Street property and was able to see the lack of work that had been completed by [Appellant]. [Detective] Hott directed [Victim] to send a letter to [Appellant] via certified mail stating that the work had not been done and requesting a refund; this was sent on April 25, 2018. [Victim] received no response to her letter.
On May 23, 2018, Detective Hott filed a criminal complaint against [Appellant]. Initially, [Appellant] was charged with one count of Theft by Deception, and two counts of Home Improvement Fraud. One count of Theft by Failure to Make Required Disposition of Funds Received was added at trial. [Appellant] was arrested on July 3, 2018. A pre-trial conference was held on February 20, 2019[,] during which the case was set for a nonjury trial on April 1, 2019 before the Honorable Harry M. Ness.
The nonjury trial was held as scheduled. At the conclusion of the Commonwealth's case, [Appellant] moved for judgment of acquittal. The [c]ourt did not grant [Appellant's] motion [to dismiss all charges but] did dismiss count two. Defense Counsel did submit a Memorandum of Law in Support of [Appellant's] Motion for Judgment of Acquittal. The Trial Court scheduled a hearing for April 11, 2019, allowing ten days for a reserved decision.
On April 11, 2019, the trial court denied [Appellant's] motion and he was found guilty of count one, Theft by Deception, count three Home Improvement Fraud, and count four, Theft by Failure to Make Required Disposition of Funds. On April 16, 2019, [Appellant] was sentenced in count one[,] to three years' probation, in count three to
three years' probation, and in count four to three years' probation; these probationary sentences are to run concurrently with each other. [Appellant] was ordered to pay restitution in the amount of $19,392 [to Victim] in equal monthly installments over the probationary period. As a condition of probation, [Appellant] is to be employed, in a business other than the home improvement business, and work at least 35 hours a week.(Trial Court Opinion, filed June 25, 2019, at 1-6) (internal citations and footnotes omitted).
On May 14, 2019[,] a Notice of Appeal was filed. This [c]ourt filed a Direction to Appellant to File a Statement of [Errors] Complained of Pursuant to Pa.R.A.P. 1925(b) on May 17, 2019. The Statement of [Errors] Complained of was filed on June 7, 2019. ...
Appellant raises three issues for our review:
WAS THE EVIDENCE...INSUFFICIENT TO CONVICT [APPELLANT] OF THEFT BY FAILURE TO MAKE REQUIRED DISPOSITION OF FUNDS RECEIVED WHERE TAKING MONEY ON A CONSTRUCTION AGREEMENT IS NOT TAKING PROPERTY "OF ANOTHER" AND THERE WAS NO SPECIFIC AGREEMENT AS TO DISPOSITION OF ANY PARTICULAR FUNDS?(Appellant's Brief at 4).
WAS THE EVIDENCE...SIMILARLY INSUFFICIENT TO SHOW THEFT BY DECEPTION WHERE [APPELLANT] DID NOT OBTAIN OR WITHHOLD ANY MONEY THROUGH FALSE STATEMENTS?
WAS THE EVIDENCE ALSO INSUFFICIENT TO ESTABLISH HOME IMPROVEMENT FRAUD WHERE THE LOOSE AGREEMENT BETWEEN [APPELLANT] AND [VICTIM] SPECIFIED NO COMPLETION DATES FOR ANY DISCRETE PORTIONS OF THE PROJECT OR FOR PROVISION OF MATERIALS?
A challenge to the sufficiency of the evidence implicates the following legal principles:
The standard we apply in reviewing the sufficiency of the evidence is whether viewing all the evidence admitted at trial in the light most favorable to the verdict winner, there is sufficient evidence to enable the fact-finder to find every element of the crime beyond a reasonable doubt. In applying [the above] test, we may not weigh the evidence and substitute our judgment for the fact-finder. In addition, we note that the facts and circumstances established by the Commonwealth need not preclude every possibility of innocence. Any doubts regarding a defendant's guilt may be resolved by the fact-finder 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. The Commonwealth may sustain its burden of proving every element of the crime beyond a reasonable doubt by means of wholly circumstantial evidence. Moreover, in applying the above test, the entire record must be evaluated and all evidence actually received must be considered. Finally, the [finder] of fact while passing upon the credibility of witnesses and the weight of the evidence produced, is free to believe all, part or none of the evidence.Commonwealth v. Jones , 874 A.2d 108, 120-21 (Pa.Super. 2005) (quoting Commonwealth v. Bullick , 830 A.2d 998, 1000 (Pa.Super. 2003)).
After a thorough review of the record, the briefs of the parties, the applicable law, and the well-reasoned opinion of the Honorable Harry M. Ness, we conclude Appellant's issues one and two merit no relief. The trial court opinion comprehensively discusses and properly disposes of Appellant's first and second questions presented. ( See Trial Court Opinion at 7-17) (finding: (1) evidence showed Victim hired Appellant as contractor to renovate property; Victim gave Appellant down payment and 35 subsequent payments for labor and materials; Appellant did not complete any significant work on project and did not contact Victim to explain his failure to perform work; Appellant's excuses at trial for his non-performance were not credible; thus, Appellant obtained Victim's property in form of payments, but property interest in those payments did not transfer to Appellant; additionally, although Appellant and Victim did not execute written contract, Appellant provided Victim written estimate for work, Victim paid Appellant for labor and materials, Appellant and Victim exchanged text messages regarding project, and Appellant performed minimal work on project; thus, Appellant and Victim had oral agreement regarding renovation project; evidence was sufficient to sustain Appellant's theft by failure to make required disposition of funds received conviction; (2) evidence showed Appellant did not use money Victim paid him for project on labor, materials, or permits; Appellant concealed his whereabouts from Victim, often lied to Victim about his presence at premises, and ignored her texts and phone calls; Appellant's minimal work on property did not justify payments he received from Victim; Victim did not see materials Appellant claimed he bought for project; Appellant failed to procure building permits for project; totality of circumstances established Appellant's intent not to perform on agreement; thus, Commonwealth presented sufficient evidence to convict Appellant of theft by deception). The record supports the trial court's rationale. See Jones , supra. Therefore, as to Appellant's first two issues, we affirm on the basis of the trial court's opinion.
In his third issue, Appellant argues his September 2017 agreement with Victim did not specify a completion date for the entire project or for any particular portion of the project. Appellant asserts the agreement also failed to specify the materials required for the project. Appellant suggests the home improvement fraud statute requires the terms of a home improvement agreement to be set forth in a written contract. Appellant asserts that even if he had originally agreed to complete the project within two months, Victim acquiesced to an extension because Victim continued to pay Appellant through February 2018. Appellant concludes the Commonwealth produced insufficient evidence to sustain his home improvement fraud conviction, and this Court should reverse that conviction and vacate the judgment of sentence. We disagree.
The Home Improvement Consumer Protection Act defines the offense of home improvement fraud, in relevant part, as follows:
§ 517.8. 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:
73 P.S. § 517.8(a)(2).
* * *
(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[.]
Regarding contract interpretation, "[f]or a contract to be enforceable, the nature and extent of the mutual obligations must be certain, and the parties must have agreed on the material and necessary details of their bargain." Lackner v. Glosser , 892 A.2d 21, 30 (Pa.Super. 2006) (citing Peck v. Delaware County Board of Prison Inspectors , 572 Pa. 249, 260, 814 A.2d 185, 191 (2002)). "In cases involving contracts wholly or partially composed of oral communications, the precise content of which are not of record, courts must look to surrounding circumstances and course of dealing between the parties in order to ascertain their intent." Boyle v. Steiman , 631 A.2d 1025, 1033 (Pa.Super. 1993), appeal denied, 538 Pa. 663, 649 A.2d 666 (1994). "[I]t is the general rule that where no time is agreed upon for the completion of a contract, it must be completed within a reasonable time under all the circumstances." Francis Gerard Janson , P.C. v. Frost , 618 A.2d 1003, 1006 (Pa.Super. 1993).
Further, every commercial contract usually imposes upon each party a duty of good faith and fair dealing in its performance and its enforcement. Hanaway v. Parkesburg Group , L.P., 641 Pa. 367, 385-86, 168 A.3d 146, 157 (2017). A party to a contract demonstrates a lack of good faith through, inter alia, "evasion of the spirit of the bargain, lack of diligence and slacking off, willful rendering of imperfect performance, abuse of a power to specify terms, and interference with or failure to cooperate in the other party's performance." Stamerro v. Stamerro , 889 A.2d 1251, 1259 (Pa.Super. 2005) (internal citation and quotation marks omitted).
Instantly, the record shows Appellant provided Victim a written estimate for the renovation project in the amount of $31,500.00 for labor and materials. On the written estimate, Appellant handwrote: "Received $1,000 to start—9-8-17." Victim testified she believed the work would begin on that date. Appellant told Victim he could complete the job in two months, and Victim said she would be happy if he finished the work by the end of December 2017.
Nevertheless, Appellant did not finish the work in December 2017. Instead, Appellant told Victim that he needed additional time to finish the renovations, so Victim paid Appellant for labor and materials on the project past December 2017. By March 2018, however, the project remained incomplete, Appellant had performed only minimal work on the property and failed to obtain necessary building permits, and Appellant was unresponsive to Victim's phone calls and text messages. Additionally, multiple items were missing from the premises, including pipes and radiators (which were in the building prior to September 2017), and materials for which Victim had given Appellant money to purchase for the renovation. Appellant failed to produce receipts for the purchase of the materials and did not return any of the missing items.
Based upon the written estimate, as well as the testimony of Victim and Appellant, the trial court determined Appellant and Victim entered into an oral contract for labor and materials, under which Appellant would start work on September 8, 2017, and complete the project by the end of December 2017. The trial court, as fact-finder, was free to credit Victim's testimony concerning the terms specified in the oral contract. See Jones , supra. Contrary to Appellant's assertion, the home improvement fraud statute does not require the homeowner to memorialize the terms of a home improvement agreement in a written contract. See 73 P.S. § 517.8(a)(2). In fact, the statute expressly contemplates oral home improvement agreements. See 73 P.S. § 517.8(a)(1), (4) (explaining person commits home improvement fraud if, with intent to defraud or injure anyone or with knowledge that he is facilitating fraud or injury to be perpetrated by anyone, actor (1) makes false or misleading statement to induce, encourage or solicit person to enter into any written or oral agreement for home improvement services or provision of home improvement materials or to justify increase in previously agreed upon price; or (4) damages person's property with intent to induce, encourage or solicit that person to enter into written or oral agreement for performing home improvement services or providing home improvement materials).
Further, the fact that Victim paid Appellant beyond December 2017 does not indicate that Victim "acquiesced" to an unlimited extension of time. Appellant failed to finish the agreed-upon work and procure the necessary materials and permits for the project by March 2018. Rather, Appellant performed only perfunctory work and multiple installations were missing from the premises. Appellant also stopped returning Victim's phone calls and text messages. Under these circumstances, Appellant's performance (or lack thereof) on the contract was not reasonable and failed to demonstrate good faith and fair dealing. See Hanaway , supra ; Stamerro , supra ; Francis , supra. Viewed in the light most favorable to the Commonwealth as verdict winner, the evidence was sufficient to convict Appellant of home improvement fraud. See Jones , supra. Accordingly, we affirm.
To the extent Appellant complains the trial court relied improperly upon a non-precedential decision of this Court when it disposed of Appellant's sufficiency challenge concerning his home improvement fraud conviction, that claim merits no relief. See Commonwealth v. Reese , 31 A.3d 708, 727 (Pa.Super. 2011) (en banc) (stating appellate court may affirm on any basis as long as ultimate decision is correct).
Judgment of sentence affirmed.
Judge Musmanno joins this memorandum.
President Judge Emeritus Bender concurs in the result. Judgment Entered. /s/_________
Joseph D. Seletyn, Esq.
Prothonotary Date: 2/20/2020
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