Com. v. Wood

Decision Date03 February 1994
Citation432 Pa.Super. 183,637 A.2d 1335
PartiesCOMMONWEALTH of Pennsylvania, v. Jeffrey Scott WOOD, Appellant.
CourtPennsylvania Superior Court

Joseph M. Kecskemethy, Butler, for appellant.

Michael J. Saglimben, Asst. Dist. Atty., Clearfield, for Com., appellee.

Before CAVANAUGH, KELLY and BROSKY, JJ.

KELLY, Judge:

Appellant, Jeffrey Scott Wood, appeals from the judgment of sentence imposed following conviction in a jury trial of one count of theft by failure to make the required disposition of funds, a felony of the third degree, 1 and one count of misapplication of entrusted property, a misdemeanor of the second degree. 2 The appellant was also convicted by the trial court of twenty counts of the summary offense of failure to make application for certificate of title. 3 We reverse appellant's conviction for theft by failure to make the required disposition of funds and remand for a new trial due to trial counsel's ineffectiveness for failing to request the standard character witness jury instruction. We reverse appellant's judgment of sentence for misapplication of entrusted property because it was supported by insufficient evidence. We reverse judgment of sentence on six of appellant's convictions for failure to make application for certificate of title due to insufficient evidence, and we vacate the illegal sentences imposed by the trial court on the remaining fourteen convictions and resentence appellant to pay a $50.00 fine for each conviction.

The relevant facts and procedural history of this appeal are as follows. In 1985, appellant, together with four co-investors, Joanne Quashnock, Fabian Bacelli, Delmont Clark and Larry Klingensmith, established a Pennsylvania corporation known as "Life of Leisure Incorporated," ("Life of Leisure") for the purposes of selling recreational vehicles. This corporation was financed through capital contributions by the shareholders and loans which were personally guaranteed by the shareholders. These loans were utilized by "Life of Leisure" to finance its recreational vehicle inventory. The recreational vehicle inventory was provided by Coachman Industries. Appellant served as secretary and treasurer of the corporation. Appellant also served as general manager of the business. While appellant was the sole full-time employee of the business throughout most of its existence, the other shareholders also worked in the business at various times on either a full-time or part-time basis. The shareholdersauthorized appellant to draw an annual salary of $25,000.00 per year for his service as general manager of "Life of Leisure." The other shareholders who worked in the business were paid either upon an hourly or commission basis for their services to "Life of Leisure."

In his capacity as secretary/treasurer/general manager of "Life of Leisure," appellant was authorized to sign checks on behalf of the corporation. Fabian Bacelli, the president of the corporation, was also authorized to execute corporate checks. The corporation was not successful and at various times the shareholders were required to infuse capital into it in order to keep the business solvent. Additionally, Joanne Quashnock loaned the corporation $9,000.00, and appellant and Fabian Bacelli forewent their paychecks during periods when business was slow. In order to reimburse Joanne Quashnock for her $9,000.00 loan, and reimburse appellant and Fabian Bacelli for their foregone wages, payments for their respective automobile loans and leases were made out of corporate funds.

During his term as general manager of "Life of Leisure," appellant purchased a Coachman motor home from "Life of Leisure" for $31,493.20. Fabian Bacelli testified that he was aware of appellant's purchase of this vehicle from "Life of Leisure;" however, he was not aware that corporate funds were utilized to make appellant's loan and insurance payments on this vehicle. The vehicle purchased by appellant remained on the "Life of Leisure" premises and was utilized as a rental vehicle. All rental payments on this vehicle were deposited by appellant into the "Life of Leisure" corporate account. This vehicle was also used by appellant to attend a Coachman Industries sales meeting at Disney World in Orlando, Florida, and a family gathering in Ohio. The vehicle was subsequently sold to Edward Heaton for $31,493.20 and the funds realized from this transaction were deposited in the "Life of Leisure" corporate account. (N.T. 12/18/92 p.m. at 57).

Additionally, during appellant's tenure as general manager of "Life of Leisure," corporate checks were utilized from September 1, 1988 to June 1, 1990 to pay for health insurance for himself and his wife. Appellant stated that he took this action with the consent of the shareholders.

Throughout 1989 and 1990, "Life of Leisure's" financial position steadily worsened. During the period of June, 1989 through August, 1990, "Life of Leisure" sold twenty-three recreational vehicles. Appellant, as general manager of the corporation, collected from the purchasers of these vehicles Pennsylvania state sales tax, license title and transfer fees. The fees collected on these twenty-three transactions were deposited by appellant into "Life of Leisure's" corporate account and were never forwarded to the Department of Transportation in Harrisburg as required by law.

By the summer of 1990, the financial position of "Life of Leisure" had deteriorated to such an extent that the funds realized from the sale of the new Coachman vehicles and the used vehicles taken in trade were utilized by appellant to pay other corporate debts. These funds should have been forwarded to Chrysler First, the company which financed "Life of Leisure's" inventory of Coachman vehicles.

On July 20, 1990, appellant, on behalf of "Life of Leisure," entered into an agreement with Paul Ramsey to sell his used recreational vehicle on a consignment basis. The agreement called for Mr. Ramsey to received $3,500.00 from the sale of the vehicle. On August 14, 1990, the vehicle was sold to Patricia Dunlap for $4,065.00. Patricia Dunlap paid for the vehicle with a personal check that was made payable to "Life of Leisure" which was deposited by appellant into "Life of Leisure's" corporate account. (N.T. 12/19/92 p.m. at 86); (Commonwealth's Exhibit 17 (Patricia Dunlap File)); (Commonwealth's Exhibit 53). On August 19, 1990, appellant gave up his position as general manager of "Life of Leisure" and went to Philadelphia to begin three weeks of training for a position he had taken with an insurance company. Upon appellant's departure, Joanne Quashnock and Betty Gearhart ran the business; however, only Ms. Quashnock assumed control over the corporate checking account. While appellant wasin Philadelphia, Paul Ramsey appeared at the offices of "Life of Leisure" to inquire about the $3,500.00 he was owed for the sale of his vehicle. (N.T. 12/17/92 p.m. at 88-89). On August 21, 1990, appellant confirmed "Life of Leisure's" $3,500.00 obligation to Paul Ramsey via a telephone call to Betty Gearhart from Philadelphia. (N.T. 12/19/93 a.m. at 90). Shortly thereafter, Ms. Quashnock had the locks changed to "Life of Leisure's" office, thus effectively barring appellant from access to the premises. In October of 1990, Joanne Quashnock mailed Paul Ramsey a check for $500.00. (N.T. 12/17/92 p.m. at 85-91). Mr. Ramsey never received the remainder of the money he was owed.

On October 25, 1990, State Trooper Robert Cessna travelled to "Life of Leisure's" offices to investigate a complaint that he had received, regarding a vehicle title and registration which had not been received, from a person who had purchased a recreational vehicle from "Life of Leisure." As a result of this investigation, appellant was charged with eight counts of theft by unlawful taking, eight counts of theft by deception, three counts of theft by failure to make the required disposition of funds, and two counts of misapplication of entrusted property. Appellant was also charged with twenty counts of the summary offense of failure to make application for certificate of title.

A jury trial was held. At trial, the Commonwealth presented the testimony of two state troopers, a representative of Coachman Industries, shareholders and employees of "Life of Leisure" and several customers of "Life of Leisure." The Commonwealth also presented as evidence business records from "Life of Leisure" including two unsigned sets of 1988 and 1989 corporate income tax returns.

In his defense, appellant relied upon his own testimony and the testimony of State Trooper John J. Ward, a witness who had also testified for the Commonwealth. Appellant also presented two character witnesses, Sergeant Timothy Fennell of the Butler Police Department and his wife, Constance Wood. Despite the introduction of character evidence, appellant's trial counsel did not request that the standard character witness instruction be included in the trial court's points for charge to the jury. After deliberation the jury acquitted appellant of all charges except one count of theft by failure to make the required disposition of funds and one count of misapplication of entrusted property. The appellant's theft by failure to make the required disposition of funds conviction resulted from his failure, as general manager of "Life of Leisure," to forward $11,046.00 in sales tax and vehicle transfer fees, collected from customers, to the Department of Transportation; while his misapplicationof entrusted property conviction stemmed from the failure to forward to Paul Ramsey the entire $3,500.00 he was entitled to receive for the sale of his recreational vehicle. The trial court also convicted appellant of all twenty summary counts of failure to make application for certificate of title and immediately sentenced appellant to pay a $100.00 fine for each conviction and serve consecutive terms of ten days...

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