Com. v. Pappas

• Decision Date: 12 February 2004
• Citation: 845 A.2d 829
• Parties: COMMONWEALTH of Pennsylvania, Appellee, v. Harry Charles PAPPAS, Appellant.
• Court: Pennsylvania Superior Court

845 A.2d 829

COMMONWEALTH of Pennsylvania, Appellee, v. Harry Charles PAPPAS, Appellant.

Superior Court of Pennsylvania.

Argued December 10, 2003.

Filed February 12, 2004.

Reargument Denied April 21, 2004.

Matthew R. Raymond, Harrisburg, for appellant.

BEFORE: KLEIN, BENDER, and OLSZEWSKI, JJ.

OPINION BY OLSZEWSKI, J.:

¶ 1 Appellant Harry Pappas was convicted on numerous counts of theft by deception, attempted theft by deception, and tampering with public records in the Court of Common Pleas, Adams County. Appellant appeals his convictions; and we affirm in part, reverse in part, and remand for further proceedings.

¶ 2 Appellant owns Krystal Cadillac Oldsmobile GMC-Truck, Inc., a car dealership. Appellant, through Krystal Cadillac, bought thirty-three used cars. Appellant then repaired these cars before placing the cars in his lot for sale to the public. The level of repair the cars required appears to be in dispute. Regardless of the state of the cars, it is undisputed that the titles to these cars did not contain any notation that the cars were either "salvaged vehicles" or "reconstructed vehicles."

¶ 3 The crux of the case against appellant is that appellant falsely led his customers to believe that the cars were in excellent condition and were not extensively repaired prior to sale. The trial court stated that:

Each and every buyer except one testified that defendant misled them about the status and condition of the vehicle sold. Purchasers were told that the car was a loaner, had been used by a family member, was a good car, a nice car and was either covered by warranty or probably covered by warranty. The automobiles were painted and no repairs were apparent. Stickers indicated that vehicles featured airbags when some did not. Defendant...told the buyer of a Ford F-150 truck that the engine was probably under warranty, but that he hadn't had time to walk across the street to a Ford dealer to find out. In fact, the truck had been taken to a dealership for repair and was informed that repairs were not covered by warranty.

Trial Court Opinion, 12/13/02, at 5-6. Because of appellant's representations, his customers purchased some of these vehicles without knowledge of the extent of the damage to the cars.

¶ 4 Appellant makes four arguments on appeal: (1) that there was insufficient evidence to find him guilty beyond a reasonable doubt; (2) that the trial court improperly imposed restitution; (3) that his counsel was ineffective for failing to reraise a motion for change of venue as a result of extensive pretrial publicity; and (4) that the trial court judge abused his discretion when he did not recuse himself from the case. Argument (1) Is covered in Points I through IV of appellant's brief, argument (2) is covered in Point V, argument (3) is covered in Point VI, and argument (4) is covered in Point VII.

¶ 5 First, we note that the Commonwealth did not file a brief on appeal, but has submitted a statement, one sentence in length, stating that it adopts the opinion of the court dated August 21, 2002. Since the four-page opinion only describes the details of appellant's sentence, the Commonwealth's "brief" is nothing more than a mere statement that the trial court was correct in its judgments.

¶ 6 An appellee is required to file a brief that at minimum must contain "a summary of argument and the complete argument for appellee." Pa.R.A.P. 2112. When an appellee does not file a brief, he not only denies himself the opportunity to fully assert his interests, but he denies himself the opportunity to challenge the appellant's assertions. We find this practice unacceptable. See Berks County Intermediate Unit v. Workmen's Compensation Appeal Board, 158 Pa.Cmwlth. 305, 631 A.2d 801, 804 n. 4 (1993)

(a "brief that contains a one sentence summary ... and a three paragraph argument will not generally serve to fully represent an appellee's interests"); Commonwealth v. Robinson, 269 Pa.Super. 398, 410 A.2d 316, 318 (1979) ("we cannot continue to accept under any circumstances" the failure of the Commonwealth to file a brief), rev'd on other grounds 498 Pa. 379, 446 A.2d 895 (1982).

¶ 7 Because the Commonwealth has failed to file a brief, we must accept as undisputed the statement of questions involved and the statement of the case as presented by appellant, and we look to the opinion of the trial court and the record to determine the validity of appellant's claims. Pa.R.A.P. 2112; Robinson, 410 A.2d at 318; Ware v. McKnight, 368 Pa.Super. 502, 534 A.2d 771, 775 (1987) (Tamilia, J., dissenting).

SUFFICIENCY OF THE EVIDENCE

¶ 8 Appellant first challenges the sufficiency of the evidence. The standard of review for sufficiency of the evidence claims is well settled.

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 proof or 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 the evidence actually received must be considered. Finally, the trier 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. Lehman, 820 A.2d 766, 772 (Pa.Super.2003) (citations omitted).

¶ 9 In reviewing the evidence in the light most favorable to the Commonwealth, we find that there was sufficient evidence to support convictions for all charges except for the charges of theft by deception on vehicles 24 and 25, attempted theft by deception on vehicles 7 and 8, and tampering with public records on vehicle 17.

¶ 10 Appellant first argues (in Point I) that the cars were neither "salvaged vehicles" nor "reconstructed vehicles," and therefore he was not required to disclose the repair history or make any notation on the certificate of title. A reconstructed vehicle is statutorily defined as a vehicle "for which a certificate of salvage was issued and is thereafter restored to operating condition." 75 Pa.C.S.A. § 102; 67 Pa.Code § 19.2(i). Since a certificate of salvage was never issued for any of the thirty-three vehicles at issue, none of the cars can be considered reconstructed vehicles under the above definition.

¶ 11 The Pennsylvania Administrative Code, however, has expanded upon the statutory definition of a reconstructed vehicle. Under the code, a reconstructed vehicle is also a vehicle that: (1) "has been materially altered by the removal, addition or substitution of essential parts derived from various other makes or models;" and (2) "has [been] determined that the vehicle is readily recognizable as a vehicle of a generally recognized make or model" by the Department of Transportation. 67 Pa. Code 19.2(ii). While there is some evidence that the cars have been materially altered, there is no evidence that the Pennsylvania Department of Transportation has made any determination as to whether these cars are "of a generally recognized make or model." Therefore, the cars are not reconstructed vehicles under the additional code definition.

¶ 12 A salvaged vehicle is defined as a "vehicle which is inoperable or unable to meet the vehicle and equipment and inspection standards ... to the extent that the cost of repairs would exceed the value of the repaired vehicle." 75 Pa.C.S.A. 102. Appellant argues that this definition cannot be satisfied because of a specific jury finding that the value of the vehicles at issue did not diminish as a result of the repairs.

¶ 13 We are unsure as to the exact meaning of the jury's specific finding as it relates to this definition. Also, we are unsure as to whether the vehicles were "inoperable or unable to meet the vehicle and equipment and inspection standards" when they were purchased from Enterprise Leasing Company or put up for sale by appellant.

¶ 14 Assuming that the vehicles were not salvaged vehicles as defined by statute, there was sufficient evidence to prove the various elements of the crimes. The sole fact that the cars were or were not salvaged or reconstructed vehicles has little bearing on the crimes of theft by deception, especially considering the other evidence presented by the Commonwealth in this case. ¶ 15 Appellant contends (in Point II(A)-(C)) that there was insufficient evidence to support his convictions for theft by deception. A person commits the crime of theft by deception when "he intentionally obtains or withholds property of another by deception." 18 Pa.C.S.A. § 3922(a). Deception is defined as intentionally: (1) creating or reinforcing a false impression; (2) preventing "another from acquiring information which would affect his judgment of a transaction;" or (3) failing "to correct a false impression which the deceiver previously created or reinforced." 18 Pa. C.S.A. § 3922(a)(1)-(3). See also Commonwealth v. Fisher, 452 Pa.Super. 564, 682 A.2d 811, 813 (1996)

. "[T]he Commonwealth must establish not only the presence of a false impression, but the reliance upon that impression by the victim." Commonwealth v. Imes, 424 Pa.Super. 633, 623 A.2d 859, 862 (1993).

¶ 16 First, we note that all the purchasers stated during trial that they would not have purchased the vehicles had they known the...