Com. v. Edwards

• Decision Date: 03 January 1990
• Citation: 399 Pa.Super. 545,582 A.2d 1078
• Parties: COMMONWEALTH of Pennsylvania, Appellee, v. Ernest EDWARDS, Appellant.
• Court: Pennsylvania Superior Court

Page 1078

582 A.2d 1078

399 Pa.Super. 545

COMMONWEALTH of Pennsylvania, Appellee, v. Ernest EDWARDS, Appellant.

Superior Court of Pennsylvania.

Argued Feb. 13, 1990.

Filed Nov. 13, 1990.

Reargument Denied Jan. 3, 1990.

[399 Pa.Super. 552] Gilbert B. Abramson, Philadelphia, for appellant.

Frances G. Gerson, Asst. Dist. Atty., Philadelphia, for Com., appellee.

Before CAVANAUGH, OLSZEWSKI and FORD ELLIOTT, JJ.

CAVANAUGH, Judge:

Appellant, Ernest Edwards, Jr., was convicted by a jury on eight criminal informations arising out of his activity in the Osage Avenue Redevelopment Project in the City of Philadelphia. ¹ Following the denial of post-trial motions, appellant was sentenced to an aggregate of six to twelve years imprisonment and ordered to pay restitution of $137,000.00.

The factual history of the case is summarized in the trial court's opinion as follows:

On May 13, 1985, in an effort to remove the radical group known as MOVE from 6221 Osage Avenue, the house was fire bombed, causing a holocaust, killing eleven people and completely destroying sixty-one homes. Immediately thereafter, the City Administrators promised reparations: to rebuild the homes and to return the displaced residents to their homes by the end of the year. To this end, the City, which was to provide the necessary construction monies, enlisted the City of Philadelphia Redevelopment Authority (hereinafter "RDA") to acquire the title to the site, prepare a prototype home and select a developer and the Urban Local Development Corporation (hereinafter "ULDC") to disburse the 6.7 million dollars the City had allotted for the Restoration. In late June, the RDA awarded the construction contract to the developer, Edwards and Harper, Inc. (hereinafter "E & H"), a close corporation in which defendant was one of two principals and which had been specifically incorporated to develop the Osage Project, obligating it to procure a completion bond, hire a general contractor and complete the project in accordance with prototypes prepared by the RDA. E & H would be reimbursed on a percentage-of-work-completed basis on a predetermined line item cost breakdown. Soon after the award, defendant Edwards proceeded on his undertaking. He enlisted the cooperation of Ebony Construction Company, Inc., (hereinafter "Ebony"), a New Jersey corporation, of which defendant Harris was the principal proprietor and defendant Edwards was director, as general contractor. Defendant Edwards requested and received start-up money for the Osage Project and commenced work on July 1, 1985, before obtaining the completion bond. When Ebony proved unbondable, defendant formed Premier Construction Company Incorporated (hereinafter "Premier") to serve as general contractor. Unsuccessful in having Premier bonded, on September 9, Premier relinquished its position as general contractor to G & V General Contractors (hereinafter "G & V"), which was able to procure bonding, relegating Premier to subcontractor status. On February 10, 1986, both of defendant's companies (E & H and Premier) were defaulted, leaving G & V, the general contractor, to complete the job, encumbered with over one million dollars of unpaid costs.

Trial Court Opinion 7/10/89 at pages 2-4.

The initial discussion will deal with three separate incidents of alleged theft involving appellant. The Commonwealth has attached to each incident three theft-related labels: Theft by Deception (18 Pa.C.S. § 3922), Theft by Failure to Make Required The test for determining the sufficiency of the evidence is whether, viewing the evidence in the light most favorable to the Commonwealth, and drawing all proper inferences favorable to the Commonwealth, the jury could reasonably have determined all elements of the crime to have been established beyond a reasonable doubt. Commonwealth v. Aulisio, 514 Pa. 84, 522 A.2d 1075 (1987). For a new trial to lie on a challenge that the verdict is against the weight of the evidence, the evidence must be so tenuous, vague and uncertain that the verdict shocks the conscience of the court. Commonwealth v. Reardon, 374 Pa.Super. 212, 542 A.2d 572 (1988). In addition, where the evidence is legally sufficient, it generally meets the test for weightiness. See Commonwealth v. Robinson, 351 Pa.Super. 309, 505 A.2d 997 (1986). ²

Disposition (18 Pa.C.S. § 3927) and Misapplication of Entrusted Property (18 Pa.C.S. § 4113). Bills Nos. 3390, 3378 and 3388 allege that, after being advanced $202,400.00 for the mobilization of the [399 Pa.Super. 554] Project, appellant misappropriated $91,585.41 to his own use. Bills Nos. 3392, 3379 and 3384 allege that appellant double-dipped on transportation expenses in the amount of $4,800.00. Bills Nos. 3391, 3380 and 3383 allege that, after shifting money around from bank account to bank account, appellant mysteriously became $11,300.00 richer. Appellant argues that the evidence presented at trial was insufficient to convict him of these three theft charges and that the verdicts were against the weight of the evidence.

With these principals in mind we look to the evidence upon which the jury based its conviction of appellant on the various offenses.

THEFT BY DECEPTION

Bill No. 3390 charges Edwards with theft by deception of $91,585.41 in connection with the utilization of the mobilization funds paid to E & H by ULDC. 18 Pa.C.S. § 3922 provides:

(a) Offense defined.--A person is guilty of theft if he intentionally obtains or withholds property of another by deception. A person deceives if he intentionally:

(1) creates or reinforces a false impression, including false impressions as to law, value, intention or other state of mind; but deception as to a person's intention to perform a promise shall not be inferred from the fact alone that he did not subsequently perform the promise;

(2) prevents another from acquiring information which would affect his judgement of a transaction; or

(3) fails to correct a false impression which the deceiver previously created or reinforced, or which the deceiver knows to be influencing another to whom he stands in a fiduciary or confidential relationship.

(b) Exception.--The term "deceive" does not, however, include falsity as to matters having no pecuniary significance, or puffing by statements unlikely to deceive ordinary persons in the group addressed.

After having been selected as the developer on the Osage Project, appellant requested start-up money before the formal signing of the contracts and before the actual construction commenced. ULDC had earmarked one million dollars for the mobilization of the project and Joseph Gaudit, ULDC's on-site representative, discussed with appellant the items that would Appellant argues that this conduct does not constitute theft by deception. He contends that he made no promise nor stated any intent to use the disbursed money specifically for the purposes outlined in his application. Appellant considered his application to be nothing more than a partial list of categories and estimates which were not binding on E & H. In his view, once ULDC disbursed the money to E & H, it became the property of E & H and could be used in any way the corporation saw fit. The $202,400.00 should be seen as money advanced to "finance" E & H and Ebony, and paying off old creditors and taking some pocket money were forms of "financing."

be eligible for payment out of that fund. On June 26, 1985, appellant Edwards made his first formal request for $340,000, an amount which was refused because it contained construction costs and construction had not yet begun. A second request for $212,400.00 was also rejected because it contained an improper item for developer's fees, an expense not allowable at that time. After appellant's third application for funds, ULDC paid E & H $202,400.00 based on the following line items: project personnel, trailer [399 Pa.Super. 556] rental, office furniture, equipment and supplies, telephone and utility deposits, layout and survey, insurance, labor, security and fencing, community liaison, equipment rental and legal, architectural and engineering fees. A promissory note was signed by the principals of E & H, appellant Edwards and Beverly Harper. At appellant's suggestion that some of these items were costs incurred by the general contractor, $108,400.00 was transferred to Ebony's account which had been specifically opened for receiving mobilization monies. Withdrawals from this account required appellant's signature. On the very same day of the transfer, a rash of checks were drawn on this Ebony account: $14,000.00 to appellant Edwards, $2,250.00 to cash (endorsed by appellant), $15,000.00 to Ebony which was deposited in another Ebony account, and approximately $80,000.00 to a host of suppliers for goods which had been provided to Ebony long before the Osage disaster.

The evidence showed that E & H was a redevelopment corporation created for the sole purpose of enabling the City of Philadelphia to rebuild Osage Avenue. ULDC agreed to front the money for the mobilization of the Project in order to allow E & H to begin work immediately, without having to procure private financing. ³ It was reasonable for ULDC, relying on appellant's submitted application, to assume that appellant would use the money in accordance with the terms spelled out in his application. Appellant was aware of the importance of the application because his first two attempts to obtain funding were rejected because of inaccurate proposals.

ULDC's representative, Joseph Gaudit, testified that no money would have been disbursed if appellant had alerted ULDC that he was going to use the mobilization money to pay old Ebony debts. As it turned out, not one of the checks drawn against the mobilization money deposited in the Ebony account was in payment for expenses related to the mobilization of the Project. We conclude that there was sufficient evidence for the jury to find that appellant obtained the...