Com. v. Decker, L.

J-S67027-14

NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA IN THE SUPERIOR COURT OF PENNSYLVANIA Appellee

v.

LLOYD A. DECKER

Appellant No. 621 WDA 2014

Appeal from the Judgment of Sentence April 11, 2013 In the Court of Common Pleas of Crawford County Criminal Division at No(s): CP-20-CR-0000973-2011

BEFORE: DONOHUE, J., MUNDY, J., and FITZGERALD, J.* MEMORANDUM BY MUNDY, J.: FILED JANUARY 08, 2015

Appellant, Lloyd A. Decker, appeals nunc pro tunc from the April 11, 20131 aggregate judgment of sentence of four to eight years’ incarceration after the trial court granted his post-sentence motions and imposed a new sentence on three counts of theft by deception, one count of theft by failure ____________________________________________

* Former Justice specially assigned to the Superior Court. 1 Appellant purports to appeal from the December 10, 2012 judgment of sentence. The trial court, however, granted Appellant’s post-sentence motions and modified Appellant’s sentence on April 11, 2013. Therefore, Appellant is properly appealing from the April 11, 2013 judgment of sentence. We have corrected our caption accordingly.

J-S67027-14

to make required disposition of funds, and two counts of securing execution of documents by deception.2 After careful review, we affirm.

The trial court summarized the relevant facts of this case as follows.

[Appellant] is purportedly a developer who sold lots to David and Jennifer Spahn (the “Spahns”) and to Steven and Deborah Stegman (the “Stegmans”), and contracted to sell lots to Thomas D. Kelly (“Kelly”). … [The details of the transactions relating to each purchaser are as follows.]

Spahns: Responding to [Appellant’s] Internet advertisement for the sale of lots along French Creek in Crawford County, Mr. Spahn arranged to meet with [Appellant] at the site in early 2010. They verbally agreed that [Appellant] would have some trees removed, the land leveled, and a water well installed. Mr. Spahn was assured that the electric service would be available and, while the Spahns initially did not need them, sewage facilities would not be a concern because of the property’s remote location in East Fairfield Township. The purchase price was set at $15,000. Closing was held sometime between January 19 and February 1, 2010, prior to which some tree removal and grading had been done. A well was subsequently completed.

The local sewage enforcement officer (the “SEO”), after inspecting the Spahns’ land on April 14, 2010, informed [Appellant] that the soils would not pass a perk test, i.e., were unsuitable for any type of in-ground septic system eligible for a permit. [Appellant] never disclosed the SEO’s report to the Spahns, nor did he offer to rescind the purchase and sale transaction.

By check dated May 27, 2010, [Appellant] was paid $1,850 for electric service, which was never ____________________________________________

2 18 Pa.C.S.A. §§ 3922, 3927, and 4144, respectively.

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provided. In the following months, [Appellant] twice contacted Mr. Spahn and succeeded in interesting him in the purchase of a pre-fabricated log cabin to be built on the purchased lots. They met on August 5, 2010, and [Appellant] was paid $500 cash and $3,000 by check, with the balance of the $7,500 purchase price paid by check dated August 13, 2010. All checks were immediately cashed. [Appellant] verbally contracted with Benjamin Byler (“Byler”) for the installation of the cabin. No building permit was ever sought, for which a sewage permit would have been a prerequisite.

Byler substantially completed the portable cabin, though at a height [Appellant] had specified of about thirty inches above ground in violation of zoning regulations; a minimum of eight and a half feet was required because the property lay in a flood zone. When the only payments Byler received from [Appellant] were two checks, both of which bounced, he removed the cabin. The Spahns were never refunded any of the money they paid [Appellant] for either the cabin or electric service, and their telephone calls to him went unreturned.

Stegmans: Also responding to [Appellant’s] Internet advertisements, Mr. Stegman met with him on April 14, 2010 and discussed plans to build a cabin on lots adjoining the Spahn property. They executed a sales agreement ten days later, setting the purchase price at $30,000 and appending a list of improvements consisting of tree removal, leveling, planting grass, and adding driveways and utilities, with completion being “weather dependent.” The specified utilities included “H2O, electric, and spring water holding tank (1000 gal).” Closing was held on May 15, 2010, and prior or subsequent thereto[,] the property was leveled, grass planted, identified trees cut down, graveled driveway added, and a sixty foot well dug.

Electrical service was never established, nor was a permitted sewage system ever installed. [Appellant] knew from the SEO’s April 14, 2010

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report, which had evaluated the Stegman as well as the Spahn lots, that an in-ground sewage system was impermissible. He nevertheless later informed Mr. Stegman that a stake indicated the location of the spring water holding tank, without disclosing that such a tank did not constitute an allowable septic system.

Kelly: After also viewing an Internet advertisement posted by [Appellant], Mr. Kelly met with him on May 6, 2010 to evaluate the offered real estate along French Creek as a site for a weekend getaway cottage. [Appellant] suggested a fresh water holding tank as an adequate sewer system, which Kelly refused. They that day signed an Agreement of Sale expressly contingent upon approval for a sewer system costing no more than fifteen thousand dollars.

The property was owned by W. L. Dunn Construction Company (“W. L. Dunn”), from whom [Appellant] represented that he would receive, as developer, thirty percent of the $61,500 purchase price. He verbally agreed to construct a road, clear land for the dwelling, drill a well, bring in electricity, and install a septic system. Kelly made a down payment of $6,200, and between May 29 and October 11, 2010, paid [Appellant] an additional $23,750 with [Appellant] signing receipts for $8,200 that referenced a septic survey and septic materials.

No sewage permit was ever issued, although soils there were determined to be suitable for an in- ground septic system. The only development that occurred on the property was some clearing and bulldozing for a roadway. W. L. Dunn received none of the sums paid by Kelly, and Kelly received neither a deed to the property nor any refund. [Appellant] avoided all of Kelly’s later attempts to contact him.

Trial Court Memorandum and Order, 4/11/13, at 1-4 (footnotes omitted).

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On November 23, 2011, the Commonwealth filed a nine-count criminal complaint charging Appellant with three counts of theft by deception, two counts of theft by failure to make required disposition of funds, three counts of securing execution of documents by deception, and one count of deceptive business practices. Appellant was arrested on December 1, 2011. On August 20, 2012, following a non-jury trial, Appellant was found guilty of three counts of theft by deception, one count of theft by failure to make required disposition of funds, and three counts of securing execution of documents by deception. Appellant was found not guilty of the two remaining counts of theft by failure to make required disposition of funds and deceptive business practices. On December 10, 2012, the trial court imposed an aggregate sentence of four to eight years’ incarceration as well as a total of $2,600.00 in fines and $74,350.00 in restitution. 3 Trial Court Sentence Order, 12/10/12, at 1-2.4 ____________________________________________

3 The trial court imposed consecutive terms of one to two years’ incarceration and a fine of $500.00 on each of the three theft by deception counts, for an aggregated three to six years’ incarceration and a $1,500.00 fine. On the count of theft by failure to make required disposition of funds, the trial court imposed a $500.00 fine and one to two years’ incarceration consecutive to the convictions for the three counts of theft by deception. On each securing execution of documents by deception count, the trial court imposed a $200.00 fine and a term of three months to two years’ incarceration concurrent with the sentence for theft by failure to make required disposition of funds, but consecutive to the sentences for theft by deception. Thus the aggregate sentence was four to eight years’ incarceration plus $2,600.00 in fines. The trial court also ordered restitution (Footnote Continued Next Page)

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On December 20, 2012, Appellant filed a post-sentence motion. On April 11, 2013, the trial court, granted the motion in part, acquitting Appellant of the charge of securing execution of documents by deception regarding the Stegmans, and reducing the amount of restitution awarded to the Spahns. Trial Court Memorandum and Order, 4/11/13, at 1-2. The trial court denied Appellant’s remaining requests for relief. The April 11, 2013 order modified Appellant’s sentence accordingly.5 Id. at 15-16.

Thereafter, Appellant timely filed a notice of appeal on May 2, 2013. On October 22, 2013, this Court dismissed the appeal for Appellant’s failure to file a brief. Superior Court Order, 10/22/13, at 1.

On December 9, 2013, Appellant filed pro se a PCRA petition. The trial court appointed counsel, and counsel filed an amended PCRA petition on

_______________________ (Footnote Continued)

in the amount of $29,950.00 to Kelly; $19,350.00 to the Spahns; and $25,500.00 to Steven Stegman. 4 The trial court’s sentencing order is not paginated. For ease of reference, we have numbered the pages of the sentence order sequentially. 5 The trial court did not modify its sentence on the three counts of theft by deception, the one count of theft by failure to make required disposition of funds, or two of the counts of securing execution of documents by deception. The trial court vacated Appellant’s conviction for securing execution of documents by deception, with respect to Steven Stegman, and therefore eliminated that portion of Appellant’s sentence for an aggregate sentence of four to eight years’ incarceration, plus $2,400.00 in fines. The trial court also modified the award of restitution to $29,950.00 to Kelly, $9,350.00 to the Spahns, and $25,500.00 to Steven Stegman, for an aggregate total of $64,800.00.

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J-S67027-14

March 7, 2014. This amended petition requested permission to file a nunc pro tunc appeal to this Court. On March 19, 2014, the trial court reinstated Appellant’s right to directly appeal his judgment of sentence nunc pro tunc. Thereafter, on April 14, 2014, Appellant timely filed the instant appeal. 6

On appeal, Appellant raises the following issue for our review.

I. [Whether the] Commonwealth failed to show that the Appellant engaged in deception in the sale of these lots[?]

Appellant’s Brief at 5.

Appellant’s issue raises a challenge to the sufficiency of the Commonwealth’s evidence in support of his convictions. We begin by noting that “[t]he 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.” Commonwealth v. O’Brien, 939 A.2d 912, 913 (Pa. Super. 2007) (citation omitted). The determination of whether there is reasonable doubt is solely for the fact-finder and we will not disturb its finding unless the evidence is too weak and inconclusive to support any probability of fact. Commonwealth v. West, 937 A.2d 516, 523 (Pa. Super. 2007), appeal denied, 947 A.2d 737 (Pa. 2008). Moreover, “[t]he Commonwealth may ____________________________________________

6 Appellant and the trial court have complied with Pa.R.A.P. 1925.

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J-S67027-14

sustain its burden of proving every element of the crime beyond a reasonable doubt by means of wholly circumstantial evidence.” Commonwealth v. Perez, 931 A.2d 703, 707 (Pa. Super. 2007) (citations omitted). “[T]he trier of fact, in passing upon the credibility of the witnesses, is free to believe all, part, or none of the evidence.” Commonwealth v. Rivera, 983 A.2d 1211, 1220 (Pa. 2009) (citation and internal quotation marks omitted), cert. denied, Rivera v. Pennsylvania, 560 U.S. 909 (2010).

Appellant argues that the Commonwealth presented insufficient evidence to show that he engaged in theft by deception, and securing execution of documents by deception.7 Appellant’s Brief at 9-11. Specifically, Appellant contends there is insufficient evidence to prove the element of deception for the aforementioned charges. Appellant’s Brief at 12. Appellant asserts that he did not deceive Kelly because the installation of a sewage system on Kelly’s lots did not exceed $15,000.00, which was consistent with a term in the contract of sale with Kelly. Id. at 9. Further, Appellant argues that the Spahns did not need a sewage system because ____________________________________________

7 We note that in his concise statement, Appellant did not contest the sufficiency of the evidence for his conviction on count 5 for theft by failure to make required disposition of funds. Therefore, we deem this issue waived on appeal, and we will not address it. See Commonwealth v. Garang, 9 A.3d 237, 244 (Pa. Super. 2010) (concluding appellant must specifically assert which convictions he is challenging in his 1925(b) statement to preserve sufficiency of the evidence argument).

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they did not intend to erect a permanent structure on the lot. Id. at 10. Moreover, Appellant contends that the Commonwealth did not prove that the purchasers sustained a pecuniary loss as a result of the allegedly deceptive practices. Id. at 10-11. Therefore, Appellant concludes, “there is insufficient evidence of record to convict the Appellant of attempting to deceive anyone regarding any of the lots.” Id. at 12.

The trial court authored a comprehensive 14-page memorandum that properly disposes of each of Appellant’s claims. The trial court found that there was ample evidence to sustain Appellant’s convictions for theft by deception and securing execution of documents by deception. Trial Court Memorandum and Order, 4/11/13, at 5-11. The trial court conducted a thorough discussion of the deceptive conduct of Appellant regarding each count of each crime for which Appellant was convicted, concluding the evidence was sufficient to convict Appellant of each crime, except for one count of securing execution of documents by deception regarding the Stegmans.8 Id. ____________________________________________

8 In its brief, the Commonwealth addresses the Appellant’s claims solely as weight of the evidence claims. Commonwealth’s Brief at 15. The Commonwealth contends that was the standard of review in both the trial court opinion and Appellant’s 1925(b) statement. The Commonwealth claims Appellant’s sufficiency of the evidence challenges are waived because said challenges are not raised in Appellant’s brief to this Court. We disagree. Appellant’s post-trial motion raised the sufficiency of the evidence issue, his 1925(b) statement preserved it, and the trial court memorandum addressed it. See Trial Court Memorandum and Order, 4/11/13, at 1 n.1 (noting, (Footnote Continued Next Page)

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J-S67027-14

The trial court concluded that the evidence was sufficient to sustain Appellant’s convictions on the three counts of theft by deception. Regarding the Spahns, the trial court noted that even though the Spahns may not have initially needed sewage facilities, the evidence established the Spahns would not have purchased the lots if such facilities could not be added and Appellant assured them that the facilities could be added. Id. at 5. The trial court concluded that Appellant committed the crime of theft by deception beyond a reasonable doubt “[b]y (1) creating or at least reinforcing th[e] false impression [that the lots were amenable to an in-ground septic system] and (2) intentionally failing to correct it [despite the SEO informing Appellant the soils would not perk], thereby (3) obtaining $7,500 from the Spahns ….” Id. Further, the trial court found Appellant committed theft by deception in the sale of lots to the Stegmans when Appellant “(1) created and (2) failed to correct the Stegmans’ false impression tha[t] his improvements [of installing a spring water holding tank] would render their lots suitable for building a cabin, thereby (3) obtaining from them $30,000 at closing.” Id. at 6. With respect to Kelly, the trial court observed

_______________________ (Footnote Continued)

“[t]he [post-trial] motion appears instead to be based upon insufficiency of the evidence.”). Appellant raised the sufficiency of the evidence in his brief. Appellant’s Brief at 2 (setting forth the scope of review and standard of review for insufficiency). Appellant also raised the weight of the evidence in his post-trial motions and 1925(b) statement, but has not challenged the weight of the evidence on appeal. Therefore, we address Appellant’s claims as sufficiency of the evidence challenges.

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Appellant’s “intentional failure to correct Kelly’s false impression that a septic system would be installed … [led] Kelly to pay him $8,200 and thereby satisf[ies] all the elements of theft by deception.” Id. at 7.

The trial court also found the evidence was sufficient to support Appellant’s conviction of two of the three counts of securing execution of documents by deception.9 The trial court explained that Appellant obtained a total of $8,850.00 in checks from the Spahns by representing that a prefabricated cabin would be erected on their property and by representing that he would perform electrical service. Id. at 10. Appellant cashed the checks from the Spahns, but did not use the proceeds to hire a contractor to construct the cabin or to furnish electrical service. Id. Further, the trial court concluded “that the evidence demonstrated beyond a reasonable doubt that Kelly was deceived into paying $8,200.00 towards a septic system that was never installed.” Id. at 11. Moreover, it is clear from the preceding discussion that Appellant’s deceptive conduct directly caused a pecuniary loss to the three purchasers. Therefore, viewing the evidence in the light most favorable to the Commonwealth as the verdict winner, the evidence was sufficient to sustain Appellant’s convictions. See O’Brien, supra. ____________________________________________

9 As previously noted, the trial court granted Appellant’s motion for judgment of acquittal on count 8 for securing the execution of documents by deception regarding the Stegmans.

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J-S67027-14

We have reviewed the record in its entirety and have considered the merits of Appellant’s claims. Following our careful scrutiny of the certified record, including the notes of testimony, the parties’ briefs, and the applicable law, we conclude that the trial court’s factual findings were supported by the record, and its legal conclusions were entirely proper. The well-reasoned opinion of the trial court provides a detailed analysis of the law of this Commonwealth as related to the facts of this case. The trial court then wholly refutes each of Appellant’s arguments. Accordingly, we conclude that the April 11, 2013 memorandum and order of the Honorable John F. Spataro comprehensively discusses and properly disposes of Appellant’s claims. Therefore, we adopt the trial court’s opinion as our own for purposes of this appellate review, and affirm the April 11, 2013 judgment of sentence.10

Judgment of sentence affirmed. ____________________________________________

10 We note that Appellant’s weight of the evidence claim and Appellant’s reconsideration of sentences argument, addressed by the trial court on pages 11-14 of its opinion, were not pursued by Appellant on appeal. Therefore, we will not review those claims, and our disposition in this matter pertains solely to Appellant’s challenges to the sufficiency of the evidence.

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J-S67027-14

Judgment Entered.

Joseph D. Seletyn, Esq. Prothonotary

Date: 1/8/2015

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Circulated 12/16/2014 11:08 AM [N THE COURT OF COMMOl'( PLE;\~; OF CRA WFORD COUNTY, PENl\SYLVANIA

Criminal Division Commonwealth of Pen nsylvania

VS. No. CR 973 - 201 I LLOYD ALONZO DECKER, DcC.ndant

Douglas W FerlJl.l~'on. Esq., Ass/slant DistrIct Aflorney Bruce A. Barrclf, Esq" First Assistant Public: Defender/or Dejimdant

MEMORA I~ DUM AND ORDER Joho 11. Spataro, 1.

fhe Defendant. Lloyd Decker (" D!cker"), is purportedly a developer who sold lots to David and Jennifer Spnhlllthe "Spahns") a,d to Steven and Deborah Stegman (the "Sregmans"). and contracted to sell lots to Thomas D. J< elly ("Kellyl'). He was convicted following a bench trial of three counts of tlleft by deception, from the Spahns) Stegmans, and Kelly - relonies of me third degree, 18 Pa.C.S. § 3922(a){3); one count of theft by fail ure to lUake reqllirt!d disposition of funds reoeived, from Kell y - also n felo 'y of the Ihird deBTee, id. ~ 3927; and Ihrcc COlllUS of securing execution of documents by deception, fro m the SPD:hns, Stegmans~ and Kelly - second d~grcc misdemeanOI's, id. § 4 114. D~cker 'las moved post-sentencing for j\ldgmcnl of acquittal,! or in the alternative. for a new trial, and if addition, for [econ~ideratjon of his sentences. Upon review, we are convinced of the sufficicnc:' of the evidence to support ail but one of his criminal convictions. Of the count of securing ext cution of documents: by deceiVIng the Stegmans, we acquit Decker and modi fy our Sentence Order accordingly. We also reduce the JUllOllnt of

I We ctlnslrue Decker's "MOlion in Arrest of Judg;llent" as a mntwl) for judgment of acqultlol in cnnnmnity wilh the Comment to Pa.R.Crfm 1'. 606, which limits thl! fonnC1'" to "raising r. Ghsllengc blCied un the court', JurisdictIon, orl double jeopardy, or on Ihe stilll\tc of limirotlons " ' rhc motion nppeil,.<t in:ncad 10 be b8~cd upon in:'!Urtit:iency or the evidence. EXIJIRIT A

Circulated 12/16/2014 11:08 AM rt:slitution awarded the Spahns. We othCIWise dismiss his motion and request fo(' recomildcnnion of his sentences for the reasons set lorth in this Memorandum.

Findings of Fact

Sp:t itns: Responding to Deckt:r's Internet advertisement for the sale oflolS along French Creek in Crawford COUtllY, Mr. Spalm aTanged to meet with Decker at the site in early 2010, They verbally agreed that Deoker would have so me trees removed, the land leveled, and 11 water well installed. Mr, Spahn \VaS assured that electric service would be available and, while the Spahns initially did not need tht:m, 'Sewlge facilities would not be a concern because of the property's remote location in East Fairfield 'lownship. The purchase priee wns set a,l $15,000. Closing was held sometime between January 19 and February 1,2010, prior to which some tree removal and grading had been done. A wdl was subsequently completed,

The local sewage enforcement Qff cer (the "SE~"), after inspecting the SpalutS' land on April 14,2010, informed Decker thal the soils would not pass a perk test, i.e,. were unsuitable for uny type of in.-groWld septic system cl .gible for a pcnnit. Oecker never disclosed the SEO 's report 10 the Spahns. nor did be offe.r to re: cind the purchase and sale transaction.

By check dated May 27, 2010, DtlCker wa., paid $1,850 for electric service, which was never provided. In [be following monrns: Decker twice contacted Mr. Spahn and succeeded 1n IDtcresting him in the purchase o f a pr~hbricated log cabin to be built on the purchased lots. They met on August 5, 2010, and Decke ' was paid $500 cash and $3,000 by check, with the balance Qr the $7,500 purchase price puit , by check dated August 13,2010. All check.1i were immediately cashed. Decker verbally :ontracled with BerUwnin Byler ("Byler") for the installation of the cabin. No huilding pemlit was e"~r sought, for which a sewage pennit would have been a prerequisite.

Circulated 12/16/2014 11:08 AM

Byler substantially completed the )orlable cabm, though at a height Decker had 'i'pecified of about tJlirty inches above ground in violation of 'loning regulations; a minimum of eight and a half feet was requi red because the property lay in iI nood zom:. When the only payments Oyler received from Decker were two checks, both of which bounced, he removed the cahip. The SpRhn~ were never refunded any of the money they paid Decker lor eiTher the cabin or electric service, and their telephone cal ls to him w!mt unretumed.

S tegma ns: Also responding to Decker's Internet advert isements, Mr . Stegman met with him on April 14. 2010 and discussed plam to build a cabin on lotsndjoining the Spahn propeny. They executed a sales agreemcnt lcn d uy~ later, setting the purchaiie price at 530,000 and appending a li st of improvements consi:>ril g of tree removal, levcling, planting grass, and adding driveways and uti lities, with completion being "weather dependent." The specified utilities included " I-I ~O. electric, and spring water holr.1ing tank (1000 gal}." Clusing was held on May 15, 2010, and prior or subsequent thereto l1e property was leveled, grass plantell. identified trees cuI down, graveled driveway added, and 3 iixty foot we ll dug.

Electrical serv ice was never eswblisbcd. nor was a permitted sewage system c\lcr installed. Decker knew from the SEO's AJlril 14,2010 report, which had evaluated the Stcgman as well as the Spahn lots , tnat an In-grounlt sewage system "vas impcnnissible. He nevertheless later intbrmed Mr. Stegman that a stake illdicated the location of the spring water holding tank, wi thout disclosing that slJc h a tank did not mnstillrte an allowable ~eptic sys1em.1

Kelly; After also viewing aD hue n et advertisement posted by Decker, Mr. Kelly met with him on May 6, 2010 to evaluate the )fiered real estate along French Creek as 8 si te for a weekend getaway cottage. DeckeT suggcs:cd a fresh water holding lank as an adequate sewer a TIicre is considerable doubt a.. whether any tank had been installed.

Circulated 12/16/2014 11:08 AM system, which Kelly refused. They that day signt:::d an Agreement of Sa.le. expressly coutingcm upon approval for a sewer s),stem cQsting no more than fiftee n thousand doltars.'

The property was owned by W, ~, Dunn Construction Company ("W, L. Dunn''), from whom Decker represented that he would receive, as developer. !.hirt)' percent of the $61 ,500 purchac;e price. He verbally agreed (0 construct 8 road, clear land for the dwdling. drill a well , bring in electricity. and install a septic lystem, Kelly made Ii down payment of $6,200, and between May 29 and Octobcr II, 2.0"10, i=aid Decker an additional $23,750. with Decker !\igning receipts for $8 1200 that referenced a septit: survey and septic materinls.

No sewage permit was ever issued. although soils tbere were determined to be suitable for an in-gl'Ound septic system. The ani), development thal occurred on the property was some clearing and bulldo~ing for Broadway. 'N, L. Dunn received none of the sums paid by Kelly, and Kelly received neilher a deed to the J1roperty nor any refund. Decker avoided all of Kell y's later altempts to contacl him.

Motion for Jud gm ent or Acquittal

Tht:ft by Deception

Theft by deception is defined as intemionally obtaining property of another by deception. 18 P3.C.S.A. § 3922, Deceplion ucuun upon failure 10 correct a false impresslOn that one previously created OT reinforced . 18 Pa ( >S.A. § 3922(a)(3), The essential componenl:i of the offense charged nre thus: (I) creating or Icinforcing a false i mpression~ (2) inh::ntiunally failing to correct that impression; and (3) thereby obtaining property or another, See CommomvetJlth v Fish"" 6R2 A.2d 811. 8 13-14 (Pn , Sup"" Ct.), appeal denied, 5.6 Pa, 691 (1996), J It is UrtclCIli wh() Wil~ intended \0 benefit by the dallllr limitation .

Circulated 12/16/2014 11:08 AM

Co unt 2 (S l,ahns): The Spalms did not need sewage. facilities at the time of purchilSe, as Uley planned Initially to park <l camper oll lhl!i r lots, The $15,000 purchase price had been a considerable expenditure for them, WId they had no immedi ate plans to develop the property, Mr. Spahn testified. however. that he would nOI have pwcbnscd the tots If Sllch facilities could not be added, and that Decker had as~ured hLm that "m Crawford County up here we're- so far out, don't really care what you do." 1 'rial Tr. at 40·42, 50. 4

Mr, Spahn's false impression at to the avai lability a standard septic system was reinforced by Decker conxing him into pu:'Chasing!l prefabricated cabin. Decker wanted to have the cabin built, despitl! having been infonn;cd by the SEQ that the soils there would not perk, ~o as to lure oilier buyers and yield him R considerable profit j Trial Tr. a.t .n, 135, These pians supply the necessary element of intent in his failure to correct the Spahns' false impression thut their properly wns amenable to an in. grOlind septic system, servicIng a lawfu lly permitted cabin. By (1) creating or at least reinfo rcing thai faloe impression and (2) intentionally failing to correct it, thereby (3) obtaining 51,500 from the Spahns. Decker committed the crime of theft by decepllon beyond any reasonable doubt.f'i

Decker maintains that the Spahn!. were no~ misled because thcIr tots were suitable for a small (low sewage treatment facility , Such a system , which the SE~ indicated was only a possibil ity . necessitates an application process with the Depanmcnl of Environmental ProtccLion, subslantial enginee.ring. and ongoing monhoring and maintenance wel1 beyond an in-ground

~ Dl!cker claimed 10 have told Mr. Spahn that "\ 1& septiC system. the only wuy that it could be approved ;s a slrcam system dj~ha rge, " l'rial n. at 113. The Cour! "til/eves .his testimony to be Jess Cl'cdibte that Mr Spahn'!)' aeCOUI1L S Decker placed f\JJ1 responslbJlIIY on Ryler for I:ons(rucling (he $7,500 cabill, including obtaining if building penn it, whl1e agreeing to pft)' him only $),300. Trla l l'r, at 108, 112, 128, 1l3. 135, I 37· j9

, Wbitc Decker assert! that Ihe cahin'j rcmoytlt glVe,i risc to only li civil maher, hi> deceptIon thru !t~ him into the criminal arcn""

Circulated 12/16/2014 11:08 AM septic system. The SE~ placed the initial cost at between $16,000 and $24,000. Trial Tr. at 15-J8. Tbis clearly was not an expense Mr. ~.palm ant ioipated.

Counl 3 (Stcgmans): Mr. Stegman communicated his building plans, and consequent need for the installation oj' a st1'lic system, wben he first mel with Decker on April 14,2010. Decker reportedly replied "that he w()uid put in the spring waler hQlrlinJ; tank and that was okay." Stegman Trial "fr. al 8. He kn~w lr should have knowll, as a developer, that any building permit would be conditioned bpon an acceptable -"ewer system . lnfonned by the SEa that no ill~ ground septic system could be permitted ,)II the Stegman lots, he nevertheless proceeded to close, and Inter represented that such a .sys em had been installed as one of the a!9"ced upon improvements.

Decker thus both (l ) created and (2) failed to correct the. Stegmans' false impression tha.n his improvements would render their lnts suitable for building 8 cabill, thereby (3) obtaining (rom them $30,000 at dosing. His intcllt to create that impression and to conceal its falsity aro amply demonstrated by his informing the Stegmans that a stake indicated the location of the system be supposedly had installcd,T Siegman Trial Tr. at 8-9; Trial Tr. at 136; cf Fisher, 682 ;\.2d <It 814-15 (F isher' s failure to comet his misrepresentation to clients wanting to build, that the [tinds he offered for !;alc were perkallc, established the intent element of theft by deception).

Decker Itrgues that the StcgmaJls also could have had n small flow sewuge treatment facility installed, al their cust. and that be was bound only by a purchase and sale !igreement that did nol reference a sewer system. Thei · agreement, on the contrary, stipulates the installation of "utilities," including what Decker chanlcterized as a spring water holding tank. Com.'s Ex, 3i

1 Decker's Motion focuses uQonlhc failure oftl~ SIegmllns, as well liS the Spohns. to make inquiries oranyone else allto the eost or feasi!)i\{ty ~r a septic system. We dC(;1inc to sbift this hurclen flam a crimillol defendant eharged witt, dc:ceit who reprrseOied him.~clras a drvclopcr.

Circulated 12/16/2014 11:08 AM Stegman Trial Tr. at 7. "Spring water hclding tank" was a pparcnUy a phrase he concocted to hide his deception. which only further validates his convictlOn.'

Coun t 1 (Kelly): Mr. Kelly was led 10 believe Calsely tbat the prupcrty he had contracted to purchasc would be developed, and then deeded to him for the construction of II vacation cottage. Decker never paid for a septic survey, nor applied for a permit, but nevertheless ~igned receipts referencing septic system matel'it ls and survey. 1Ie told Kelly that "we're ready to go and gel this done," and blemed delays on " [I]he sewage inspector being sick Dnd the papt!fWork being at the EPA." TriaJ Tr. at 74-75, " 9~~O. His intentional fai lure to correct Kelly 's false impression that Ii septic system would be installed - sn impression nourished by the receipts and eX.cuses - lead Kelly to pay him $8,200 al d Ulen;by satisfy aJl the elements of theft by deception.

Failure to Make Required Disposition of F unds Received The offense of failure to make required disposition of funds received is defU1cd as follows:

A person who obtains property upon agreemenl, or subject to a known legal obligation, to make specified pa) ments or other disposition, whelher fl'O m .c:uch property or its proceeds or from his own propeny to be reserved in cquivalcut amoum, is guilty of then if he int(,ntionully deals with the property obtained as his own and fails to make the required paynlent or disposition ....

IR Pu.C.S.A. § 3927(0.). The four Ciet1ents of the crime are thus: ( I) obtaining property of another (2) subject to an agrccmcnl or known legal obligation to ma.ke specified payment or other disposition tbereof, (3) intentioMlly dealing with such property as one's own~ and (4) failing to make! the required paymcrt or disposition. Commc)t"l.wealfh v Crafton, 337 A.2d 1092, 1094-95 (pa. Super, Ct. 1976), co,'€c/ed, 599 A,2d 135J ( 1991) ,

Cou nt 5 (Kelly): Decker had arranged with W. L. Durm 10 receive thiny percent of the proceeds fo r developing and sellin& the lot" that were offered for sale to Mr. Kelly. Trial Tr at I Mr. Stegman's lc.;tim ony was more credible than anything olTered by OeGkcr 10 explain thl$ play on words.

Circulated 12/16/2014 11:08 AM 84, 89 1 ll 5. He received_$29,950 fro lll Kelty in pal1iai paymem of the $61 ,500 purchl:lse price, and paid nothing tu W. L. Dunn. Trial Tr. at 86-90. 122. Obtaining, funds from Kelly aJJd fdi\ing to remit them to. w. L.. DUlln pursnant to t heir agr~emel1t satisfies all but the fe lonious intent element of the offen~e of fa.ilun: lO make required di~positj(]n of fUllds received.

Decker displayed an utter disrtlgurd for his principal, w. L. Dwul, ill bandling Kelly 's. initial depos it and later nayments: "as 101lg as I hud my 30 percent - or tha.t T received my 30 percent, he [Kelly] eouid close at any tinH~ with Dunn." Trial Tr. at 140. W. L. Dunn anticipated receipt of 100 percent of lht: sale pl'Oceec.s, from which De<:ker viould be paid. thirty percent, or $18,450. Trial Tr. al 89, 95. Allowing, i "lead, fo r the dcduclionoftbis fee from Kelly's partial payments stilllt;avcs Decker with $11.50U in excess funus belonging to W. L. Dunn. Decker appears to maintain that tbis ex~ess was the additional cost for installing fl septic sYiitem and well, but KeUy credibly testified that bo:h improvements were included in the purchase pri cc. ~ The excess, in any event, was not cxpeJldl~d on a required septic sur vey, permit, or well. 10

When Decker offered only eXCUiies f01 hh; failure to perronn, and later could not be reached, Kell y's Itnorney contacteLl Jerry Dunn ("DUlll») ur the W. L Dunn company. Unable to reach Decker by phone, Dwm fo und where he Hvcd , called upon Jlim personally. und arranged to meet with him the next day at his offil )e. Decker never appeared, and Dunn IlbanJotled what he con:~idt![ed to be wastefitl efforls ro co otact him. Trial Tr. at 87-89. Decker's own te!'timony.

o The Cnn-Ull()llWealtn plAced in cyidotv;:e a dev~jcpment l\gr~emenl bd\I-Yeen the partIes dated june 6, 2010 thst includes "updating .......ell, septic i1nd lIny other ut litjli!s,~ Com.'~ Ex. S. That documcnI WII.~ pafc1ltly designed to detailllrrangt!ll1ents between II deveJ.,per nnd stl tr of real estate, rather than a purchaser, Imd plaec:l development "[a jl Developer' s di~eret\on. " lis il lu~(Jry nature ~ \lbs,anlmtes Uecker's deception jf not Kelly's ullderstllildins· IB Asked whether the surveyor ht,d been pcid 1 D,t(:ker replied rill, becau.st: " [l}hnT Job w]!., never N)ll1r!e~ed" Trial Tr. at 132. !n light of his failure to pay ByIlam for [he 5palms' cabin, we decline to infer from his testimony thai hI! intended 10 pay the surveyor (or anyone else) llpon oompletion of work ,

Circulated 12/16/2014 11:08 AM his avoIdance of Kelly and Dunn, and hi, retention of Kelly's payments establish his tntent to deal with thesaie proceeds as his-own.' 1

Decker is mi~taken Ihat his conviction of two theft crime!. (Counts 1 and 5) wa:; erroneous because both involve "exactly the same money," as Count I is grounded solely upon that portion of the $29,950 that Kelly paid him towards a seplic system ($8.200). Even if accurate, his contention is unsupported il. thc cast law. E.g. . CO/IJnlomveaflh \I. Fuvinl!er, 516 A.2d 1:186, 1388 (pa. Super. Ct. 1986) (hffinning bookkeeper's conviction of both offenses on the basis of the sam e missi ng checks) Ndthcr offcllse, moreover, is a lesser included offense of the other, a., required for merger; they involve different aClS and different menIal states. See, e.g., Commonwealth v. Evam, 901 A.2d 528, 536-37, 2006 PA Super l32. Count I is based upon D~cker deceiving Kelly into payillg $8,200 Cor a non-existent sewer system,'1 whereas Count 5 is predicaled upon Decker's abrosation of duty to pay W. L. DlUUl. Deeker intentionally deprived Kelly of money (COlict I), and in addition. intcntionally used W. L Dunn's money as hi:> own (Count 5).11

Securing Execution of Documents by Deception

A person comm its the offense of securing execution of documents by deception "if by deception he causes another to execute a ly instrument affecting Or purporting to affect or likely to affect the pecuniary interesl of any pe: ·son." 18 Pa.C.S.A § 41 HI. Decker was charged with

II The. C01nmonwealih wa.c; not required to offer ttlSlirnony as to how Decker actually used those.: payments as his own. Commonweallh v. Frftr. 470 A2d 1363, 13,7 (pa. Supcr. Ce. \983) (diclum); SI;I1! C,Qjlon, 8IJpf(J. 11 Acconllng IU the SED, Kelly's system would hove cost only S6,OOO. Trial Tr. 1l1 18 u Dcc:k~r'5 nrgume.nl mighl be. applicable: in re~~rd to the Spahns. from whom he wa, IIlso churgeJ with theft by d«eplion (Count 2) as well as theft by [allure to make required distribution o[ funds recoi'led (Cuunt 4): The /iller Count w"s b...ed UJ'O" Decker's failure . alt intemedlnry. to pall Byler any of the 5:7.500 Ihllilhe Spohns ll"id him fo' the cabIn - the !lame S7,SOO that fonned the basis of his conviction on Count 1 (supra). Wt need n01 oonsider the merits ofhi~ Ilrgument. however. beeause Decker was acqui tted ofColJol4.

Circulated 12/16/2014 11:08 AM obtaining che ck payments oy deception from the Spahns and the Stegmans-, and obtaining aontrilclS as well as check payments from <elly by deception.

Cu unl 7 (Spuhns) ; Relying upon Deckcr's representations that a prefabricated cabin would be built on their property. the SJlaIUl~ had two drafts totaling $7,000 drawn on Iheir credit union account made payable to him. (Com.'s Ex , 5), Deckcr cushed both checks. but never paid Bylt:r to construct the cubin. His ~xplaJ1ation of having an agreement to offsel the price with bail money he had pMtcd for By ler is be lied by the two worthless checks he issued. and contradicted by Byler'g more credible testimony. Trial Tr. at 28·29, 33·34.108·9,134·35 Decker pocketed the Spahn's money on the rationale thai Byler "would get future business for the construction of fadditional) cabjns," witb the Spahn's cabin serving as a model. Ttial '1'r at 33, 135, He solicited the purchase but denied respomibilit)' for either obtaining a permit ar finishing the cabin. His declaration that the Spahos "cid h"vc II cabill" highlights his duplicity. Trial Tr . at 133, 138, No cabin exists on the propCJly. nor was a building permit obtained tor one, The SpallllS were not refunded any of the $7500 purchase price. We conclude that Decker never

intended to pay Byler any part or the purchase price. and that the Spabns were thus intentionally deceived into paying Decker with their tW) credit union checks,

Their third chcck~ fo r $1,850, also illade payable to Decker, "was for the electrical service lha1 was never provided ." Trial Tr. at 44, Decker merely placed a temporary box on nn adjacent l'roperty. rrial Tr. al 104. The inrerence .hal he never intended to fully perform is confirmed by his failure to furnish electric service (or ~mwer systems) for thc Stegmans and Mr. Kelly as well. The execuLion oflhe Spahns' Ihirdcheck IYllli1 therefore, also ob1ained by deception,

Decker asserts that. his convictiOl on Count 7 should be set aside because the Sp..'lhns were deeded their lots pursuant to the saje I agreement, and ~ny failure to abide by that agreemenl

Circulated 12/16/2014 11:08 AM is a civil matter. His Count 7 conviction. however. rests upon execution of checks for t.he cabin rather than the sales agreement.

Co unt 8 (Stegmans): An esscnliHI clement of the crinlc of securing execuuon of documt!nts by deception is an "instrument" IIffccting !l pecuniary interest - in this case, a check. Al lhough we have concluded lhat the Steglllan.s w~re deceived into paying Decker $30,000 for their property (~e Count I). the Commonwealtb did not present evidence of any check Or checks having been executed in payment of tht~ purcbase pnce. Decker's judgment of sentence on Count 8 must therefore be vacated upon n:consideralion.

Co un t 6 (Kelly), In our discussion of Count 3, we determined that the evidence demonstrated beyond a reasonab le doubt that Kelty was deceived into paying $8,2UO towards a septic system thtlt was never in.l5talled . P1.Ylllcnl was via three checks which Decker casbed and for which he signed receipts (Com.'s E)(s. 9 & to). Obtaining, by deception, $8.200 in cheuk payments from Kelly satisfies each of the elements of the cnme of sC!Curing execu1ion of documents (checks) by deception.

Decker denies any fraud or decepHon because he disclosed his principal, W. L. Dunn. As his conviction is based upon the septic system payments, we need not determine whether the Commonwealth established fr.J.ud in the execution of the Kelly sales agreement.

M Ol ion ror NewTria l

Tn moving for a new trial, Oeckc) evidently contends that Ihe verdict was COnlrary 10 the weight of the evidence. 14 For a new lriul to be awarded. the verdict must be so contrary to the evidence as to I'shock one's sense of just ce." Rivera, supra n.13 . The evidence, on the contrary,

14 Mr. Decker has not specifically alleged tballrn weig.ht ohhe evidence does not sllppon hiS convjolion5. We nev-. enheless address Iho mol/on a~ going \0 the wei.;tn of Ihe evid~nel:, lecagniziliS Ihal a fno! ion rOI " nl!;w .rial mllsl concede its suflicrenc)" for otherwise me defel'ldam would be placed in doubie jcopardy. CDinmomv(.ulth v. RIVera, 911) A.21i 1211 , 1225 (pa. 2009) ~ Commonwe(llth v. WJlIfema)l, 48.5 A,:Zd 4:\9, 462(PI'I Super. (;t. 1984).

Circulated 12/16/2014 11:08 AM suggests that Decker's modus operandi \Vas to do just enough i> ite preparation to create the illusion that he was proceedIng with substantive lot improvements. Quite apart from the diminution in value of their lots hecause the soils there wi ll not perk, the SpalUlS did not get 9 cabin, and the Stegmans did not get utilities for whid\ they paid. Kelly receh,ed nothing at all. Wo discern no facts suggesting that juslicl! was denied, rather than servt'o. See Rivero, 983 A.2d at 1225-26.

ReconsideratioD of Sentences

The provisions of 42 Pa.C.S.I\. ~ 9721(b) guide uS 111 reconsidering Ibe se.ntcnccs imposed on Dt:cker:

The court shell follow th~ general prindple that the sentence imposed should call fo r confinement that is consistent with the prolcction of the public., the gravity of the offense as it relates to the impact on the life of the victim and on the community. and the rehabilitativ«) needs of the defendant The court shall also consider any guidelines for se ntencing adopted by the PeJUlsylvarua Commission on Sentencing and taking effect J: ursuanl to sec tion 2 155 (relating to publication of guidelines for sentencing).

We review again the prcwscntencmg Tepert (showing inter alia co:wictions in 2008 for criminal mischief and in 2009 fo r receiv ing ::;tolen properlY), and we also take into account such factors us the rmture of his crimes, his character, and his demeanor at trial and apparent lack of remorse. &e genel'ully Commoflwea{ln v. Ems, 70) A.2d 948, 958 (Pa. Super. CL 1997).

On Counts 1. 2. and 3 of theft b:' deception, with an offense gravity score of four ') and having a prior record score of two. Dl.Nkt:r was sentenced to incarceration for a minimum leon uf twelve months. well within thc standard range sentence of three to fourteen months established hy the guidelines. His sentence of incar.;eration for a minimum of twelve months on Count 5 is

I) With respect 10 CoUllts 1 and 3, {herb excccdlhS S25,OOO.OO, the .icntenclng guideline foml included wilh IRe rre- :><:nlcncilt.g rcpon CtTOn1:luusIy indicateti an o(fcruc: gravity ~re or four inslea.j or .\\"'. r", which the S!lInd,.rd fIInat sentence on a prior record score Or\y{o is a minimum of Iline 10 siXleen months, rather than Ihree.to fourlCtI1 months. Deck:e r '~ mInimum sentence oj' twelve months was thererore at only the median level fo r those twO act\lal ocren.scs.

Circulated 12/16/2014 11:08 AM also within the standard range of three to fourteen months for failure to make required disposir ion of funds received .'6' Decker a so received.l standard ran~ sentence of three months incarcerdtion on each of his conviction~ on Counts 6 1 7, and 8 of securing execution of documents by deception. 11

These sentences in accordance with the guidelines recognize the gravity of his offensefi and the impact on his multiple victims and, it i~ hoped, present an opportunity for rehabilitativ<! lrealm~nt. Cf Commonwealth v. Lilley, ')7S A.2d 995 (Pa. Super, Ct. 2009). Decker nlso hru: impaCkd the rcputH.tioll of the commuml y by swindling three Ollt--of-county residents, further influencing our determination that his scn1cnocs for deception should run consecutive rather than concurrent and towards the higher end of the standard range.

Decker concedes that the SpatUlS are entitled to be reimbursed $8,850 for the cabin/I and that $29,950 is appropl'iate restitlllion for Kelly. The additional $10,500 ordered in restitution to the Spahns and $25,500 to the Stegmans represents the differences between the purchases prices for their propenies and their appraised value of $4 ,500. Decker admits in his supporling memorandum of law that "[the Stegmans' land] is apparently worth less than the amoul1l[lhey] agreed to pay," but osserts that restitutior shou ld not be ha!ied upon an appraisal because their agreement wi(h Decker was an arms length transaction. Reduction in value is. we believe, the proper measure of damages for a transaclion founded on deceit, and an appropriate remedy in this criminal proceeding. Cj. 18 Pa.C.S . !i 1106(cXI)(i) (''The court shall order fult restitution ... so as to provide the victim with the fulll:st compensation for the loss.").

I~ The offense:. grav;ly score on Count 5 should alSI' haVe been six (see n. 15, JJJpra), rather th~n four as reported. for which the standard r:mge sel\lenoe is likewise tl mmimum of nil1e to sixteen months on II prior record score of lwo. Decker again beneflled from Ihiii miSGI11cul:\liOJl. 17 A.s :ndicated nbove, his Count 8 sentence will be ~u1!ified. U Both ihis figure, from Decker's supporting Memonmdum of Law, and (he Court', award of $19.350 overlook Ihl:- $500 down pa.yment thai Mr. Spahn p.a;d Decker in cash for Ihe. callin . Trial Tr at 44.

Circulated 12/16/2014 11:08 AM

We IlJ'C constrained, however, tJ) agree wilh Decker that the amOllnt of restitut ion awarded the Spalms should be reduced from S19,350 to the $9,350 they paid him for a cabin and electrical ~ervice. While the Spahns may have purchased their lots on lhe false assumption., reinforced by Decker, that un in-eraund septic system could be added later, it was not shown Ihal Decker knew of the falsity of that assumption until JeLivl!ty of the SEQ's report months later. There is thus no evidence that he knowingly failed to correct a false impression m tbe time he obtained the $ 15,000 purchase price, or ti!at he caused the. Spahns to execute check payments at clo~ing by deception .

Decker's convictions on Couols ;. and 7 remain because they pertain to the cabill and electricity. fo r which restilution is prqperly ordered. rhe additional rest itution, baseu upon the difference between the purchase price for lhe Spabns' property and its fai r mW'K.et value (without septic sllitability), cannot, however, be sustained.

Accordingly. we enter the following ORDRR:

ORD E R

AND NOW. thi s 11 Ih day of April2UJ3. for Ule reasons sei forth in (he fbrego in!; Memorandum, th e followi ng is ORDERED:

I) Defendant's judgment of convbtion afCount. 8. Securing Execution of Docume.nts by Deception. with respect to Stcv:m Stegman, is vacated.

2) The Additional Sentence oftbt Court Order da.ted the 10th dllY of December, 2012 is modified to read as fol[ow~ :

Upon a conviction for Securing E::ecutio n of Documents by Deception. Counts 6 and 7, each misdemeanors of tile second degree, the sentence of tbe Cou{'I is as follows :

• • Pay a fine of $ 200.00 (or each count, bringing: th e a ggr~ga tcd tota l to S 400.00.
• • Serve a period of [ncarceratioll in a State Co rrectional [nstitulion to be determined by the Uepartment of Corrections for a minimum term of 3 months to a maximlJm tcrm of

Circulated 12/16/2014 11:08 AM

24 months, for each ofCoullts 6 and 7, (oully ooncurrent with the !)entcnce imposed above for the conviction at CountS, but consecutive to the st-"l1tcnccs at Counts 1,2 and J witb pre- sentence incarceratiou credit of 0 days,

3) Tbe Additional Tenns of Senlc!,!ce of the Court Order is modified to read lilt rollows;

• • Pay restinllion Lo T ho mas Kelly io the amount of S 29,950.00; to Dav id and .Jennift'r Spah n ill the amount or$ 9,35 0.00 and to Stevell Stegman in the amount of $ 25,500.00 All payment.... made shall tirst apply toward restitution befofC being applied to co!;L,>, fines and fees.

4) The Sentence Summary of the Court Order is accordingly modified to read as follows:

• • The foregoing represents n stale sentence of incarceration aggregated to 48 to 96 m on ths, with 118 days of cred it. The [ lefendan t is RRRJ eligible. having an RRRJ minmuDi of 40 m o nth ~ . The aggregated lotal fin e is $ 2,400.00. The total restitution is S 64,350.00.

5) Defendant's Post· Sentcnce Motion is in all other respects denied.

6) The Defendant is advised that he has a right to ft le an appeallO the Superior Court. Any such appeal mUSt be filed within thiny (30) days from this dale or the:\e matters become finaL

7) The Defendant has tbe right to assistance of coum:el in the preparation of an appeal if he chooses to engage in his right to appeal. IfDcfendant cannot afford counsel of his own, he has the right to app~ 1 In forma pauperis and couns~1 will be appointed [or purpose ofthc appeal.

BY THE COURT,

(Signed: John F, Spataro, J.l Judge