Com. v. Matty

• Decision Date: 09 February 1993
• Citation: 422 Pa.Super. 595,619 A.2d 1383
• Parties: COMMONWEALTH of Pennsylvania v. Kenneth MATTY, Appellant.
• Court: Pennsylvania Superior Court

Page 1383

619 A.2d 1383

422 Pa.Super. 595

COMMONWEALTH of Pennsylvania v. Kenneth MATTY, Appellant.

Superior Court of Pennsylvania.

Argued Nov. 17, 1992.

Decided Feb. 9, 1993.

[422 Pa.Super. 596] Joseph M. Fioravanti, Media, for appellant.

Dennis McAndrews, Asst. Dist. Atty., Media, for Commonwealth, appellee.

Before OLSZEWSKI, KELLY and HOFFMAN, JJ.

OPINION

OLSZEWSKI, Judge:

Kenneth Matty appeals from the judgment of sentence imposed on a guilty verdict for theft of services and criminal solicitation to commit theft of services in the Court of Common Pleas of Delaware County on May 26, 1992. Three issues are presented for our review: (1) whether there was sufficient evidence to sustain Matty's conviction for theft and solicitation to commit theft of services; (2) whether Matty may be legally convicted of solicitation to commit a summary theft offense; and, (3) whether Matty was properly convicted of solicitation to commit theft of services when he was not charged with this particular solicitation offense. After lengthy deliberation, we find that the trial court did not err in its disposition of these issues and affirm the judgment of sentence.

Matty was charged on September 19, 1991, with eight counts of theft by unlawful taking or disposition, eight counts of receiving stolen property, six counts charging theft of services, six counts of criminal solicitation, and six counts of violating the Pennsylvania Ethics Act. These charges arose out of allegations that Matty had misappropriated county labor, materials and other items for his own benefit. As Warden of Delaware County Prison, Matty was responsible for the supervision of all prison employees. The Commonwealth charged that Matty had improperly used prison personnel and materials to make substantial improvements to his property, and the property of others. Following a trial before the Honorable R. Barclay Surrick, the jury found Matty guilty of the summary offense of theft of services in the amount of $32. 18 Pa.C.S.A. § 3926. Relating to this offense, Matty was also convicted of criminal solicitation, in violation of 18 Pa.C.S.A. § 902. Post-trial motions were filed and denied. Matty was sentenced to pay $32 in restitution; no further punishment was imposed. Matty was thereafter permanently suspended from his position as warden.

Matty's first contention of error is that the evidence was insufficient to support the charge that Matty intentionally obtained the labor and services of a Delaware County Prison employee, George Piasecki, "by deception or threat, or by false token or other trick or artifice to avoid payment for these services." Bill of Information 7067(B). We disagree.

The test for sufficiency of the evidence is well established. Viewing all of the evidence in the light most favorable to the Commonwealth as verdict winner, the record facts must contain sufficient evidence to enable the trier of fact to find every element of the crime beyond a reasonable doubt. Commonwealth v. Edwards, 521 Pa. 134, 555 A.2d 818 (1989) (and authorities cited therein).

The evidence adduced at trial reveals that on June 6, 1991, Matty and Piasecki went to the house of Jean Gullo, the mother of Matty's secretary, to install a ceiling fan. The two remained there from approximately 8:30 a.m. until 11:30 a.m. during the prison workday. Matty assured Piasecki that he would be "taken care of" for the work performed. Piasecki was paid $32 by the county for the hours performed at Gullo's home.

Matty argues that the trial court erroneously concluded that he intended to commit theft of services merely because he told Piasecki he would be compensated. Specifically, he urges that the Commonwealth failed to offer the necessary proof that he approved and authorized Piasecki's timecard which indicated that Piasecki had worked at the prison during the hours in question. Matty also asserts that he did not know that Piasecki was compensated on the payroll and that he intended to "compensate" Piasecki himself. Thus, Matty concludes that the evidence was legally insufficient to sustain a guilty verdict for the summary offense of theft of services and solicitation to commit this offense.

Mindful of our standard of review, we are convinced that a reasonable jury could have found that Matty intended to commit theft of services and solicitation to commit theft of services. As did the trial court, we find that the evidence viewed in the light most favorable to the Commonwealth sufficiently proved the elements of the crimes charged. Section 3926 provides in pertinent part:

Diversion of Services--A person is guilty of theft if, having control over the disposition of services to others to which he is not entitled, he knowingly directs such services to his own benefit or to the benefit of another not entitled thereto.

18 Pa.C.S.A. § 3926(b). The offense of solicitation is defined as follows:

A person is guilty of solicitation to commit a crime if with the intent of promoting or facilitating its commission he commands, encourages or requests another person to engage in specific conduct which would establish his complicity in its commission or attempted commission.

18 Pa.C.S.A. § 902(a). The trial court found that Matty clearly had control over the disposition of services rendered by Piasecki. Matty diverted those services for the benefit of Gullo, who was not entitled to receive them. (Reproduced Record, at 80A.) The Commonwealth proved that Matty knew the services were being diverted because the Commonwealth established that Matty was with Piasecki on the morning in question and knew that Piasecki was scheduled to work at the prison during those hours. (Reproduced Record, at 81A.) Testimony also demonstrated that Matty reviewed the time cards and approved the prison payroll. (N.T., 1/9/92, at 222-227.) Lastly, the trial court concluded the evidence established that Matty requested that Piasecki engage in this conduct. (Reproduced Record, at 366A.) See, trial court opinion at 7. Our review of the record is in accord with the trial court's findings. Accordingly, we affirm the trial court's holding that the evidence was sufficient to support Matty's convictions.

Matty's second allegation of error urges that he was convicted of an offense which does not exist under the Pennsylvania Crimes Code. Matty alleges that he cannot be convicted of solicitation to commit theft of services in an amount less than $50 because such a theft is a summary offense rather than a crime. ¹ The offense of solicitation by definition requires that a "crime" has been attempted or committed. 18 Pa.C.S.A. § 902. Matty's argument is predicated on his assertion that summary offenses are not included in the definition of "crimes" as set forth in 18 Pa.C.S.A § 106. ² Section 106(a) sets forth the seven classes of crimes ranging from murder to misdemeanor in the third degree. "Summary offense" is defined separately in § 106(c).

Our Courts have considered and rejected Matty's argument. James K. Lewis v. Commonwealth, 74 Pa.Commwlth. 335, 459 A.2d 1339 (1983). In Lewis, appellant argued that he could not be convicted as a parole violator because his conviction for a summary offense did not amount to a conviction for a crime. Appellant asserted the same argument as Matty, that because the legislature did not list "summary offenses" under the classes of crimes generally enumerated in § 106(a) and (b) of the Crimes Code, but defined them separately in § 106(c), the legislature did not intend for summary offenses to be crimes. Id. at 337, 459 A.2d at 1341. The Lewis Court rejected these arguments noting that § 106(a) states, "an offense ... for which a sentence of death or imprisonment is authorized constitutes a crime." Because imprisonment is authorized under § 106(c) for a summary offense, the Court concluded that the commission of a summary offense constitutes a crime under the Crimes Code. Id. (citing Interest of Golden, 243 Pa.Super. 267, 365 A.2d 157 (1976)); see also Commonwealth v. Trunzo, 404 Pa.Super. 15, 589 A.2d 1147 (1991) ("summary offense" is considered a "crime" for which punishment of imprisonment, fine and/or probation attaches). We are obliged to follow the prevailing authority of this jurisdiction, and thus find that Matty's conviction for solicitation to commit a summary offense was proper.

In his third allegation of error, Matty argues he was improperly convicted of solicitation to commit theft of services because he was not charged with this crime. The bills of information charged Matty with solicitation to commit theft by unlawful taking, and solicitation to commit theft by receiving stolen property. The information did not charge Matty with solicitation to commit theft of services. The essence of Matty's argument in this regard is that he was defending the crimes charged in the information, not the crime for which he was convicted. He concludes that the substantial variance between the information and the evidence presented at trial warrants reversal of his sentence. Appellant's brief, at 22.

We find that Matty waived this issue regarding the legality of his conviction for solicitation when he failed to object to the court's instructions to the jury on the elements of the offense. Rule 1119(b) provides that "[n]o portions of the charge nor omissions therefrom may be assigned as error, unless specific objections are made thereto before the jury retires to deliberate." Pa.R.Crim.P., Rule 1119, 42 Pa.C.S.A. The present jury was charged on the elements of the offense of theft of services, and was instructed to find Matty guilty of solicitation if it found him guilty of theft. ³ (N.T., 1/13/92 at 6-7, 24-27, 29-30.) Further, the jury was provided with verdict slips which included this offense. As the Commonwealth noted, Matty never objected to the court's instruction or the verdict slips. Conversely, defense counsel specifically agreed that it was not necessary for the verdict slip...