Com. v. Chambers, L.

• Court: Superior Court of Pennsylvania
• Decided: September 27, 2022
• Docket: 424 EDA 2021
• Status: Unpublished

Opinion

J-A07007-22

NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA : IN THE SUPERIOR COURT OF : PENNSYLVANIA : v. : : : LEONARD CHAMBERS : : Appellant : No. 424 EDA 2021

Appeal from the Judgment of Sentence Entered January 27, 2021 In the Court of Common Pleas of Philadelphia County Criminal Division at No(s): CP-51-CR-0009387-2019

BEFORE: DUBOW, J., McLAUGHLIN, J., and KING, J.

MEMORANDUM BY McLAUGHLIN, J.: FILED SEPTEMBER 27, 2022

Leonard Chambers appeals from the judgment of sentence entered after

his bench trial convictions for theft by deception and three counts of home

improvement fraud.1 He raises claims of double jeopardy and due process

violations and alleges two of his convictions should have merged for

sentencing purposes. We affirm.

In September 2019, Chambers was charged by criminal complaint with

four counts: theft by unlawful taking,2 theft by deception, theft by receiving

stolen property,3 and home improvement fraud. Home improvement fraud can

be committed in several ways, only three of which are relevant here. These

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1 18 Pa.C.S.A. § 3922(a) and 73 P.S. §§ 517.8(a)(1), (a)(2), and (a)(3).

2 18 Pa.C.S.A. § 3921(a)(1).

3 18 Pa.C.S.A. § 3925(a). J-A07007-22

three are, in very general terms, the making of false and misleading

statements, the receipt of advance payment without performing, and the

misrepresentation or concealment of certain information:

(a) Offense defined.--A person commits the offense of home improvement fraud if, with intent to defraud or injure anyone or with knowledge that he is facilitating a fraud or injury to be perpetrated by anyone, the actor:

(1) makes a false or misleading statement to induce, encourage or solicit a person to enter into any written or oral agreement for home improvement services or provision of home improvement materials or to justify an increase in the previously agreed upon price;

(2) receives any advance payment for performing home improvement services or providing home improvement materials and fails to perform or provide such services or materials when specified in the contract taking into account any force majeure or unforeseen labor strike that would extend the time frame or unless extended by agreement with the owner and fails to return the payment received for such services or materials which were not provided by that date; [or]

(3) while soliciting a person to enter into an agreement for home improvement services or materials, misrepresents or conceals the contractor’s or salesperson’s real name, the name of the contractor’s business, the contractor’s business address or any other identifying information[.]

73 P.S. §§ 517.8(a)(1), (a)(2), & (a)(3).

The criminal complaint was based on allegations that Chambers

fraudulently induced LaShelle Thompson to enter into two separate contracts

for home improvement services and to pay Chambers $975 for work he did

not perform. Relevant to the charge of home improvement fraud, the

complaint asserted that Chambers had committed home improvement fraud

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in three ways: by making false and misleading statements, receiving advance

payment and failing to perform, and misrepresenting or concealing his real

name, the name of his business, or other identifying information. See Criminal

Complaint, filed 9/13/19, at 2 (unpaginated).

The Commonwealth followed up in December 2019 by filing an

information (“Information”), again charging theft by unlawful taking, theft by

deception, theft by receiving stolen property, and home improvement fraud.

The Information gave the statutory citation for the home improvement fraud

count as 73 P.S. § 517.8(a)(1) (making false and misleading statements).

However, the Information used language relevant to both that subsection and

subsection (a)(2) (receiving advance payment and failing to perform).

The Commonwealth later moved to amend the Information to more

explicitly allege violations of subsections (a)(1), (a)(2), and (a)(3). The

motion stated, “To the extent the bill of information is unclear, the

Commonwealth, consistent with the criminal complaint, moves to correct

and/or amend the bill of information to clarify that the defendant is charged

with violating 73 P.S. § 517.8(a)(1), (2), and (3).” Motion to Amend/Correct

Bills of Information, filed Mar. 16, 2020.

On the day of trial, immediately before the trial started, the

Commonwealth obtained a ruling on its motion to amend the Information.

Defense counsel said he had “no objection,” and the court granted the

amendment:

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[The Commonwealth]: Your Honor, there is one thing I just want to put on the record, and I just am clarifying that count four is a home improvement fraud, the Commonwealth subsection A.1., the language -- the bill actually refers to subsection one, two and three, we are proceeding under subsection A.1, 2 and three of Title 73 75172.8 [sic], and, in addition, Your Honor, the date of the Bills of Information is April 8th. I also am moving to amend it to April the 6th and 8th?

[Defense counsel]: No objection, Your Honor.

THE COURT: The motion is granted.

N.T., Jan. 27, 2021, at 12.

The court then conducted a stipulated trial. Afterward, the trial court

said it was finding “Chambers guilty of theft by deception, false statement to

induce home improvement services. As to the remaining charges, the Court

finds [Chambers] not guilty.” N.T. at 39. Minutes later, however, the court

explained its verdict and made findings of fact supporting guilty verdicts for

all three of types of home improvement fraud charged:

Mr. Chambers had a written contract with Ms. Thompson to install carpets in multiple rooms for $800 and another for $175. It was a valid contract. Per Ms. Thompson’s testimony, the work was to be done within the two to three day period. Which never happened. Ms. Thompson relied on the fact that Mr. Chambers had a valid contracting company and was a bona fide contractor. A Clear Search showed that there was no such business or company registered as Perfect Home Improvement Company which is an indication of intent to engage in a fraud. Also, Ms. Thompson was given a false business address by Mr. Chambers. And the check was cashed by [Chambers] that Ms. Thompson gave to him. [Chambers] did not start the job in a reasonable time. When Ms. Thompson called and texte[d] Mr. Chambers to ask him to do the job, he promised to do it but never followed up. [Chambers] never gave money back to Ms. Thompson in fact he never offered to give money back

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which is evidence of intent to commit fraud. There was no proof that Mr. Chambers used any portion of the money that Ms. Thompson gave him to buy supplies, the carpets or materials, and this evidence also shows intent to commit a fraud. After more than two months of inaction on the part of Mr. Chambers, [Ms.] Thompson called the police, at that point an arrest was made.

Based upon the totality of the circumstances, there was more than mere nonperformance indicated to show Mr. Chambers inten[ded] to defraud Ms. Thompson. . . . [Chambers] intentionally withheld Ms. Thompson’s money and created a false impression that he intended to install carpets at her house. Simply put, he took Ms. Thompson’s money, did not do the job within a reasonable time and repeatedly broke promises to do the job over the course of two months. [Chambers] did not offer to give the complainant her money back, also there was no legitimate excuse for failing to do the job, nor was there any evidence that he had purchased any materials for the job.

Id. at 39-41.

The case proceeded immediately to sentencing. When imposing

sentence, the court stated the “sentence is going to be 11 and a half to 23

months, to run concurrently on the three charges. A one[-]year probationary

tail on the felony charge, consecutive to the jail portion of the sentence.” Id.

at 54-55.

That very day, the court entered a written sentencing order. Although

the court had said it was imposing sentence on three charges, the written

order was for four charges. It imposed four identical, concurrent sentences of

11½ to 23 months in jail followed by one year of probation. Relevant to this

appeal, the headings for the counts listed convictions for theft by deception

and all three types of home improvement fraud charged:

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• “18 § 3922 §§ A1 - Theft by Decep-False impression”

• “73 § 517.8 §§ A1 – False Stmt to Induce Agreement for Home Improvement Services”

• “73 § 517.8 §§ A2 – Receives Advance Payment For Services and Fails to Perform”

• “73 § 517.8 §§ A3 – Misrepresents or Conceals Contractor Identifying Information”

Order, entered 1/27/21, at 1-2 (unpaginated).

Chambers appealed and raises the following issues:

1. Was not the appellant subjected to a violation of his state and federal rights against double jeopardy when he was informed in open court that he had been convicted of two offenses and promptly received two sentences on those charges, only to learn weeks later that following the adjournment the judge had recorded four guilty verdicts plus sentences on the four verdicts, thereby increasing the punishment he had received?

2. Did not the trial court violate appellant’s right to counsel and due process of law by entering additional convictions and sentences on the docket for which he had never been charged in the absence of both the defendant and his attorney?

3. Did not the trial court violate appellant’s state and federal rights against double jeopardy by imposing multiple convictions and punishments for his singular culpability of violating the home improvement fraud statute, which by its terms establishes a single offense subject to multiple forms of proof and/or enhancements?

4. Should not the sentence imposed on theft by deception have merged with any sentence imposed on the offense of home improvement fraud enhanced as a felony based on the age of the victim?

Chambers’ Br. at 3.

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We will address Chambers’ first two issues together. Chambers

maintains he did not know that he had received four separate sentences until

after he filed an appeal and “learned that four separate sentences had been

recorded on an expanded docket and on the ‘Order of Sentence’ prepared in

[his] absence following the adjournment of his trial and sentencing hearing.”

Id. at 10. He points out that at trial the court referenced the language of only

one subsection of the home improvement fraud statute when stating the

verdict and found him not guilty of “the remaining charges.” Id. He argues

the court impermissibly increased the number of convictions and sentences

after the trial adjourned, and he had a “legitimate expectation of the finality

of his sentence and his verdicts of acquittal and conviction.” Id. He maintains

this was a double jeopardy violation. He further contends the court violated

his due process rights by entering verdicts on two counts that had not

previously existed.

The trial court explains in its Pa.R.A.P. 1925(a) opinion that it intended

what it wrote in the sentencing order, not what it said on the record at trial.

It states that its explanation of its verdict “made it abundantly clear that

[Chambers] was guilty of § 517.8(a)(1), (2) and (3).” Trial Court Opinion,

filed June 25, 2021, at 8.

Chambers’ arguments stress the conflict between the court’s on-the-

record statements about the verdict and sentence with the terms of its

sentencing order. When a court’s oral statements conflict with a written

sentencing order, there is a rebuttable presumption that the written order

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controls. See Commonwealth v. Kremer, 206 A.3d 543, 548 (Pa.Super.

2019).

Chambers highlights the inconsistency between the court’s oral

statements and the sentencing order. However, he does not attempt to rebut

the presumption that the written sentencing order controlled. Moreover, even

if we were to examine the court’s oral statements alone, we think the record

establishes that the court intended to find Chambers guilty of three counts of

home improvement fraud, and the court therefore properly sentenced on all

three counts.

Chambers’ arguments train on the court’s announcement of the verdict

in isolation. But when we look at that statement in context – taking into

account the court’s on-the-record findings in support of the verdict within

minutes of the disputed statement, and its sentencing order issued that same

day – the record paints a different picture. The court’s findings follow the

relevant statutory language closely and evince an intent to convict under each

subsection. The court’s findings set forth that the complainant relied on

Chambers’ purportedly valid contracting company to enter into the contract,

which corresponds to subsection (a)(1); that Chambers misrepresented

himself as a bona fide company and gave a false business address, which

corresponds to subsection (a)(3); and that Chambers cashed the

complainant’s checks without performing in a reasonable time, which

corresponds to subsection (a)(2). As for the sentencing order, the fact that

the court issued it shortly after the verdict is strong evidence that the court

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meant to find Chambers guilty of all three subsections charged but misspoke

on the record. Had the court imposed sentence weeks or months later, we

might reach a different conclusion.

Accordingly, this is not a situation where the court altered its verdict

after its entry. Rather, when the record is viewed as a whole, it is clear the

trial court intended to find Chambers guilty of three subsections of the home

improvement fraud statute. Because the court found him guilty of three home

improvement fraud counts, in addition to one count of theft by deception, it

properly sentenced him for four separate convictions. Chambers’ double

jeopardy and due process claims lack merit.

In his third issue, Chambers argues that the home improvement fraud

statute defines a single offense, and the various subsections represent

alternate means of proving the offense or of determining the grading. He

contends that the multiple convictions and sentences here violated double

jeopardy. He argues the statute stated that a person commits “the offense,”

in the singular form, and provides alternate methods of proving the

commission of that singular offense.

This claim also fails. The case on which Chambers relies –

Commonwealth v. Given, 244 A.3d 508 (Pa.Super. 2020) – is inapposite.

There, we concluded that “a defendant should not be subject to separate

sentences for multiple convictions under 75 Pa.C.S.[A.] § 3802(d)(1), where

the defendant committed a single act of driving while his blood contained a

parent compound and a metabolite of the same controlled substance.” Id. at

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510 (emphasis omitted). We reasoned that a defendant should not be subject

to more than one sentence for a single criminal act—driving after using

marijuana—that results in multiple convictions under the same subsection of

the DUI statute. Id.

Here, Chambers’ multiple convictions and sentences were based on

findings he committed different acts, pursuant to different subsections of the

statute. He was convicted of making false and misleading statements,

pursuant to subsection (a)(1); receiving advance payment without

performing, pursuant to subsection (a)(2); and misrepresenting or concealing

certain information, pursuant to subsection (a)(3). The Given court’s concern

about a defendant being subject to multiple convictions based on different

forms of proof for a single criminal act does not arise here.

The Commonwealth thus did not use the same proof to establish the

convictions under the separate subsections. Rather, each subsection contains

different elements and the Commonwealth established guilt of each with

different evidence. There was no double jeopardy violation. See

Commonwealth v. Talley, 236 A.3d 42, 52-54 (Pa.Super. 2020) (holding

conviction for stalking under 18 Pa.C.S.A. §§ 2709.1(a)(1)4 and (a)(2) did not

merge for sentencing purposes because they did not arise from a single

criminal act and all elements of the subsection are not included in the other),

4 The stalking statute also uses the singular “the crime” when defining the offense. 18 Pa.C.S.A. § 2709.1(a).

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affirmed, 265 A.3d 485 (Pa. 2021);5 Commonwealth v. Rhoades, 8 A.3d

912, 918 (Pa.Super. 2010) (holding because two aggravated assault

subsections – 18 Pa.C.S.A. §§ 2702(a)(1) and (a)(4) – contain different

elements, it was not error to find that the convictions did not merge for

sentencing purposes).

In his fourth issue, Chambers claims the theft by deception conviction

should have merged with the home improvement fraud false statement

conviction for sentencing purposes. He argues the crimes included the same

elements and that theft by deception is a lesser-included offense to the crime

of home improvement fraud false statement.

The court convicted Chambers of theft by deception under Subsection

3922(a)(1) of the Crimes Code. Under that subsection, the Commonwealth

must prove that the defendant “intentionally obtain[ed] or with[e]ld[]

property of another” by “intentionally . . . creat[ing] or reinforc[ing] a false

impression, including false impressions as to law, value, intention or other

state of mind[.]” 18 Pa.C.S.A. § 3922(a)(1).

The trial court also convicted Chambers of home improvement fraud

under Subsection 517.8(a)(1). Under that subsection, the Commonwealth

must prove that the defendant, “with intent to defraud or injure anyone,”

“ma[de] a false or misleading statement to induce, encourage or solicit a

5 The appellant in the Supreme Court’s decision was the defendant, and he did not challenge this court’s disposition of his sentencing claim. See Talley, 265 A.3d at 505 n.7.

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person to enter into any written or oral agreement for home improvement

services[.]” 73 P.S. § 517.8(a)(1).

Merger only occurs if two distinct circumstances are present: 1) the

crimes arise from a single criminal act, and 2) all the statutory elements of

one of the offenses are included in the statutory elements of the other. 42

Pa.C.S.A. § 9765. When determining whether the crimes arose from a single

act, we examine the Commonwealth’s charging documents. Commonwealth

v. Martinez, 153 A.3d 1025, 1031 (Pa.Super. 2016).

The trial court explained that the Information listed different dates of

commission of each crime. The Commonwealth averred that Chambers

committed home improvement fraud on April 6 and April 8, 2019, and theft

by deception on April 8, 2019. See Trial Ct. Op. at 10-11; Criminal

Information, filed 12/24/19, at 1 (charging Chambers with, inter alia, theft by

deception “on or about: 04/08/2019”); N.T. at 12 (granting Commonwealth’s

motion to amend information to reflect commission of home improvement

fraud on April 6 and 8, 2019). Thus, the two convictions arise from different

criminal acts and do not merge. Moreover, the statutes that define each

conviction contain an element that the other lacks. Theft by deception requires

that the defendant obtain or withhold the property of another while home

improvement fraud has no such requirement. Similarly, home improvement

fraud requires misrepresentation to induce the victim to enter a contract for

home improvement services while theft by deception includes no such

requirement. Compare 18 Pa.C.S.A. § 3922(a)(1) with 73 P.S. §

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517.8(a)(1). Accordingly, the offenses do not merge for purposes of

sentencing.

Because the charges did not arise from a single criminal act and neither

offense encompasses all the statutory elements of the other, the trial court

properly declined to merge for sentencing purposes Chamber’s conviction for

theft by deception and home improvement fraud false statement.

Judgment of sentence affirmed.

Judge King joins the memorandum.

Judge Dubow files a dissenting memorandum.

Judgment Entered.

Joseph D. Seletyn, Esq. Prothonotary

Date: 9/27/2022

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