Com. v. Fisher

• Decision Date: 14 August 1996
• Citation: 452 Pa.Super. 564,682 A.2d 811
• Parties: COMMONWEALTH of Pennsylvania v. Frederick W. FISHER, Jr., Appellant.
• Court: Pennsylvania Superior Court

Page 811

682 A.2d 811

452 Pa.Super. 564

COMMONWEALTH of Pennsylvania v. Frederick W. FISHER, Jr., Appellant.

Superior Court of Pennsylvania.

Submitted May 14, 1996.

Filed Aug. 14, 1996.

Philip D. Lauer, Easton, for appellant.

Mary B. Seiverling, Deputy Attorney General, Harrisburg, for Commonwealth, appellee.

Before JOHNSON, FORD ELLIOTT and HOFFMAN, JJ.

JOHNSON, Judge:

Frederick W. Fisher, Jr., appeals from the judgment of sentence imposed following his convictions for corrupt organizations, theft by deception, and forgery. Because we find that the conviction for corrupt organizations must be overturned, we vacate the judgment of sentence on that count. In all other respects, we affirm the judgment of sentence.

Fisher was charged with the above-stated offenses following an investigation into a real estate scheme involving property in the Monroe and Pike County area. Following a jury trial, Fisher was convicted of one count of corrupt organizations, twenty-six counts of theft by deception, and five counts of forgery. After considering Fisher's post-trial motions, the trial court arrested judgment on four of the theft by deception charges and ruled that one of the theft by deception charges was barred by the statute of limitations. Subsequently, the court sentenced Fisher to an aggregate term of 13 years and 3 months' to 28 years and 6 months' imprisonment, imposed a fine of $10,000, and ordered Fisher to pay restitution and the costs of prosecution. Post-sentence motions were filed and denied without a hearing. This appeal followed.

We have re-numbered Fisher's issues for the purposes of review. On appeal, Fisher contends that (1) the evidence was insufficient to support his convictions. Fisher also maintains that the trial court erred in; (2) permitting certain irrelevant and immaterial evidence to be presented to the jury; (3) failing to dismiss some of the charges based upon the expiration of the statute of limitations; and (4) refusing certain requested jury instructions. Finally, Fisher claims that (5) the court imposed an improper sentence.

In reviewing a challenge to the sufficiency of the evidence, "an appellate court must determine whether the evidence was sufficient to enable the [fact-finder] to find every element of the crime charged, beyond a reasonable doubt, viewing all the evidence and reasonable inferences therefrom in the light most favorable to the verdict winner." Commonwealth v. Zimmick, 539 Pa. 548, 554, 653 A.2d 1217, 1220 (1995).

A person is guilty of theft by deception if he intentionally obtains property from another person by deception. 18 Pa.C.S. § 3922; Commonwealth v. Lawson, 437 Pa.Super. 521, 650 A.2d 876 (1994), appeal denied, 540 Pa. 596, 655 A.2d 985 (1995). Deception occurs when that person creates or reinforces a false impression regarding the value of property, or fails to correct a previously created false impression that influences the victim regarding such value. 18 Pa.C.S. §§ 3922(a)(1), (3). In the present case, the Commonwealth was required to prove that Fisher intentionally created a false impression in the minds of buyers regarding the value of the lots that he was selling and then used the buyers' reliance on that false impression to obtain the buyers' money. Commonwealth v. Imes, 424 Pa.Super. 633, 639, 623 A.2d 859, 862 (1993). "The Commonwealth must demonstrate not only the presence of a false impression but that the victim relied upon that impression." Lawson, supra, at 529, 650 A.2d at 880; Imes, supra. Fisher has been convicted of 21 counts of theft by deception. The trial court found, and, after a review of the record, we agree, that Fisher systematically convinced people to trust him and to purchase property or services from him. N.T., November 30, 1993, at 72-99, 147-189; N.T., December 1, 1993, at 140-161, 188-218; N.T., December 2, 1993, at 5-33, 52-71, 82-101, 113-128; N.T., December 3, 1993, at 7-28, 59-76, 90-109; N.T., December 6, 1993, at 68-91, 130-165; N.T., December 8, 1993, at 6-35; N.T., December 9, 1993, at 8-27, 45-71, 85-108, 121-46, 169-85; N.T., December 10, 1993, at 41-56; N.T., December 13, 1993, at 68-86, 118-39.

Fisher distributed by hand, on the highways leading into the Pocono area from New York City and New Jersey, flyers advertising lake-front properties for sale. Fisher also advertised these properties in various New York and New Jersey newspapers. After responding to the advertisements, buyers were directed to come to Fisher's office and were shown several available lots by one of Fisher's associates. After a lot was chosen, the associate escorted the buyer back to Fisher's office and Fisher encouraged the buyer to sign a binder on the property and give him as little as $100 for a down payment. If the buyer asked whether the lot was suitable for building, Fisher reassured the buyer that he had nothing to worry about and that the land was "perked," meaning that it was approved for a septic system. At this point in the negotiations, Fisher had the buyer fill out a mortgage application and assured him that Fisher would arrange for financing. Fisher did not send these mortgage applications to a bank or mortgage company; instead, he issued payment books himself under bogus corporations with impressive names such as "Chase Mortgage Company" and "Monroe-Pike Mortgage Company." After a few days, his secretary called the buyer, told him that the mortgage had been approved, and set up an appointment for the closing on the property.

Fisher typically instructed the buyer to bring to the closing two certified checks payable to themselves. Fisher assured the buyer that the checks would clear the bank more quickly if made payable in this fashion. One check was designated to cover the balance due on the down payment for the land, and the other was for closing costs, recording fees, transfer taxes, preparation of documents, and title insurance. Fisher assured the buyers as they left the office that they would receive all the necessary documents, including results of the perk tests, in the mail within a few weeks. Typically, however, the buyer received only a mortgage payment book. Buyers did not receive notice that title transfer taxes had been paid or that the new deed and mortgage had been recorded. A buyer attempting to build on his lot soon discovered that the property did not perk and could not be built upon without incurring significant additional expense, or, in some instances, could not be used for building at all. When the buyer attempted to contact Fisher regarding his dissatisfaction with the lot, Fisher avoided all phone calls, and often left for an extended trip to Bermuda. Many buyers attempted, in vain, to obtain a return of their down payments from Fisher.

Some of the victims did not purchase property from Fisher. Instead, they contracted with him for the performance of perk tests on land that they owned in the vicinity of the properties Fisher was attempting to sell. Fisher, acting in the name of Monroe-Pike Sewer Contracting, charged $250 in advance for this testing. None of the tests were performed, nor could the victims achieve a refund of their money. Still other victims contracted with Fisher, acting under the name of Redi-to-Finish homes, for the construction of a shell or frame of a house. Fisher failed in these instances to complete construction and did not return the victims' down payments on these homes. Eventually, several buyers complained to the Attorney General's office and Fisher was charged in connection with these matters.

Intent to deprive persons of their property is an essential element of theft by deception. Commonwealth v. Grife, 444 Pa.Super. 362, 368, 664 A.2d 116, 119 (1995), appeal denied, 544 Pa. 654, 676 A.2d 1196 (1996); Lawson, supra; Imes, supra. There is ample evidence that the victims in this case relied upon Fisher's representation that the land was suitable for building when purchasing the land. See, e.g., N.T., November 30, 1993, at 73, 80; N.T., December 1, 1993, at 140-41, 151, 191; N.T., December 2, 1993 at 8, 14, 24, 54, 85. Fisher argues that the Commonwealth has failed to prove that he intended to deceive the buyers regarding the value of the property because he had the power to deliver good title to the property at the time the property was paid in full and the deed was scheduled for delivery. Even if Fisher could have delivered good title, however, he could not have changed the characteristics of the land itself to make the land perkable when it clearly was not. Because Fisher had misrepresented that the land was perkable, and because this affected the value of the land, any possible intention of Fisher's to cure some of the problems that the buyers encountered does not ameliorate Fisher's guilt. See Imes, supra (holding that defendant committed theft by deception when he mortgaged the same property to several people without disclosing the existence of prior mortgages; whether the defendant intended to pay off some of the prior mortgages did not negate the intent to deceive the victims and deprive the victims of their property).

Fisher also maintains that the evidence was insufficient to support his convictions because "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." 18 Pa.C.S. § 3922(a)(1). However, viewing all the evidence and reasonable inferences therefrom in the light most favorable to the Commonwealth as the verdict winner, we find that Fisher's failure to deliver good title to the land in question was not the only basis for the conclusion that he intended to deceive the purchasers into buying this land. Rather, we find support for his convictions in his failure to inform the buyers that the property would not pass a perk test, his failure to perform the contracted-for perk tests, his failure to construct the shell homes as required to under certain...