Com. v. Eibell, J.

• Court: Superior Court of Pennsylvania
• Decided: May 2, 2025
• Docket: 922 EDA 2024
• Status: Unpublished

Opinion

J-S47013-24

NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA : IN THE SUPERIOR COURT OF : PENNSYLVANIA : v. : : : JOSEPH EIBELL : : Appellant : No. 922 EDA 2024

Appeal from the Judgment of Sentence Entered November 29, 2023 In the Court of Common Pleas of Bucks County Criminal Division at No(s): CP-09-CR-0004847-2022

BEFORE: KUNSELMAN, J., SULLIVAN, J., and BECK, J.

MEMORANDUM BY SULLIVAN, J.: FILED MAY 2, 2025

Joseph Eibell (“Eibell”) appeals from his judgment of sentence 1 for

multiple convictions of Home Improvement Fraud, Deceptive Business

Practices, and Theft by Deception.2 We affirm.

Eibell committed what the trial court termed a “40-month saga of

contractor fraud” in which he extracted thousands of dollars in down payments

for home improvement services from each of nine victims. See Trial Court

Opinion, 5/14/24, at 1.

In April 2019, Brian Gilbert (“Gilbert”), who lived with his wife and four

young children, agreed to pay Eibell $120,000 to remodel his kitchen and build

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1 Eibell purports to appeal from the denial of his post-sentence motions. His appeal properly lies from his judgment of sentence. See Commonwealth v. Sanchez-Frometa, 256 A.3d 440, 442 n.2 (Pa. Super. 2021). The caption in this case has been corrected accordingly.

2 See 73 P.S. § 517.8(a)(2), 18 Pa.C.S.A. §§ 4107(a), 3922(a)(1). J-S47013-24

an upstairs addition. See id. at 2. At Eibell’s request, Gilbert paid a $30,000

down payment to Eibell’s company, Three Brothers Renovations (“Three

Brothers”), and $20,000 to PA Home Store, where Eibell said he would be

buying materials. Eibell did not begin working on the property until August,

2019, nearly four months later. See id. at 2.

After Eibell’s crew demolished Gilbert’s kitchen, Eibell demanded full

payment. Gilbert compromised and paid $16,000 to Three Brothers and

$9,000 to Eibell personally. Eibell then removed Gilbert’s roof which left the

house covered only by a tarp from August to December 2019, which resulted

in significant water damage to the home from seasonal storms, and later,

mold damage in many areas of the home. Gilbert’s requests for Eibell to finish

the roof went unanswered, other than Eibell’s request for more money. Gilbert

paid an additional $27,000 by September 2019. See id. at 3.

In December 2019, Gilbert confronted Eibell at his office and demanded

the name of the roofer. He contacted the roofer directly, and in December,

the roofer closed the roof. Eibell stopped working thereafter; “[Gilbert’s]

home was left with a gutted kitchen, exposed wiring, a demolished first floor

bathroom, an unfinished upstairs addition, a disconnected HVAC system,

water damage, and mold.” See id. at 3. Additionally, Gilbert did not receive

any materials from the PA Home store. See id.

In May, June, and August 2019, Joyce McCollum (“McCollum”)

contracted with Eibell to install a new rain gutter and an internal door and

hardware installation, fully renovate her basement, and renovate her garage.

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See id. at 3-4. Eibell’s work was delayed and done poorly. In September

2019, after meeting with McCollum, Eibell signed a new agreement to fix the

defective work in October and November 2019; by mid-December, he still had

not done so. See id. at 4. After another meeting, Eibell issued another work

order with which he also failed to comply. Eibell ultimately delivered only

about one-third of the work he agreed to and for which he received $34,000.

See id.

In July 2019, Michael Levin (“Levin”) contracted for Eibell to remodel his

son’s home in Philadelphia for $80,000; the contract called for the work to be

completed in September and for Levin to make a $30,000 down payment,

which he did. See id. at 4-5. Eibell’s crew immediately cleared debris from

the home and demolished it and an intact shed; progress then stalled. See

id. at 5. In October, Levin discovered Eibell had never pulled construction

permits to inform authorities of his forthcoming project; by the time Eibell did

so, Levin had paid him a total of $60,000. See id. Other than some second

floor framing, Eibell accomplished nothing beyond demolition and cleanup.

Levin later spent $17,000 to finish the basement and repair the roof. See id.

In April 2020, Melissa Matthews (“Matthews”) wanted a new deck for

her family and contracted to pay Eibell $39,400, with a $15,000 down

payment, $9,000 to him and $6,000 to Three Brothers. After she made the

payment, Matthews never saw Eibell again. See id.

In August 2020, Airen Ehrlich (“Ehrlich”) wanted to have her family’s

downstairs bathroom redone; she contacted Eibell, who quoted the job at

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$12,000 and estimated it would take two weeks. Ehrlich made $9,000 in down

payments by September 2020. Eibell’s crew completed demolition, put up

new drywall, “roughed in” the plumbing and electrical, but then ceased work.

They left the bathroom untiled, with leaky plumbing, and exposed live wires,

which later shocked Ehrlich’s youngest child. See id. at 6.

In June 2021, Eibell was performing painting at Chelsea Walker’s

(“Walker”) home, when Walker suffered flooding due to faulty plumbing. The

parties agreed that within one month in exchange for $50,000, Eibell would

nearly totally remodel the first and second floor, waterproof the basement,

and install new plumbing. See id. Walker gave Eibell a $15,000 down

payment. No one showed up to work for two weeks. In July, one of Eibell’s

employees contacted Walker to request an additional $15,000 for materials.

Believing Eibell would resume work, Walker paid an additional $15,000; Eibell

performed no work for nearly one month. See id. at 7.

In early September 2021, a worker claiming to be the foreman on the

job demolished the upstairs bathroom and removed the tub, toilet, and sink.

Progress again stalled until a crew demolished the rest of the second floor in

October 2021, by which time Walker had paid Eibell a total of $30,000. She

never received the materials Eibell claimed to have purchased, including new

windows, and her copper plumbing was removed without her approval. See

id.

In June 2021, Larry Minsky (“Minsky”) entered into a $90,000 contract

with Eibell to perform, within 60 days, major renovations on an investment

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home he had bought recently. See id. at 7-8. Eibell demanded and received

an $18,000 down payment and bi-weekly $9,000 payments. Eibell’s crew

completed demolition before the third payment but then ceased work. Eibell

demanded money to buy kitchen materials and HVAC equipment. Minsky

made the fourth through sixth payments but stopped paying when work did

not resume; Eibell failed to perform virtually all of the contracted installation

and replacement work, and exterior replacement work remained unfinished.

Additionally, Eibell never delivered promised windows or flooring materials.

See id. at 8.

In October, 2021, Barbara Forman (“Forman”) entered into contracts

worth a total of $53,800 with Eibell, who had previously done mold

remediation for her, to install stairs from a back deck to the yard of her

daughter’s home where she had moved after her husband’s death and to

install a patio and an exterior walkway. See id. at 9. Forman paid Eibell a

$22,400 down payment. See id. Eibell never got the architectural drawings

from the township he had promised to obtain. After winter made work on the

back deck impossible, Eibell promised to finish the work in the Spring. He

never did so. See id.

In April 2022, Tim Simmons (“Simmons”) paid Eibell a $6,750 down

payment toward a $15,570 project to repair leaky windows and fix water

damage. See id. at 10. Eibell performed no work in April. Simmons called

Eibell’s office four times in May and was told work would begin in June. In

June, Eibell performed demolition, and very little other work; Simmons never

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received new windows and the work that was performed was done shoddily,

leaving dislodged downspouts, exposed wiring, and significant gaps in the

siding beams. See id.

All of the victims attempted to have Eibell refund their money or perform

the work he contracted to perform, but none received satisfaction. See id.

Five victims filed civil suits; four of them received judgments by default. Eibell

had no assets and no victim ever recovered damages. See id. at 11. Several

victims also contacted the Consumer Protection Bureau, and one contacted

the Bucks County District Attorney’s Office. See id.

As a result of Forman’s complaints, Detective James Schirmer

(“Detective Schirmer”) of the Upper Southampton Police Department

discovered four other victims. See id. In June 2022, when Detective

Schirmer questioned him, Eibell said Minsky was a “piece of sh*t,” Walker was

“inexperienced with money,” Gilbert and Gilbert’s father argued about money,

and Ehrlich “cried like a baby” to police. Eibell acknowledged only his debt to

Forman. Detective Schirmer arrested him that day. See id. at 12. Through

additional detective work, Schirmer identified four additional victims, and

discovered the check-cashing facility where Eibell cashed the victims’ checks.

Eibell was ultimately charged with ten counts of the above offenses,

including offenses he allegedly committed against Chuck Freeberger

(“Freeberger”). Eibell filed a motion seeking severance of the charges relating

to each of the ten complainants. At a hearing in September 2023, the court

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denied Eibell’s severance motion. At a trial in October 2023, the jury convicted

Eibell of the charges related to the nine victims listed above and acquitted him

of all charges relating to Freeberger. In November 2023, the court imposed

an aggregate sentence of two to six years of incarceration and a consecutive

term of probation.

Eibell filed a timely post-sentence motion asserting sufficiency and

weight claims. The court conducted a hearing on the motions in January 2024,

and received Eibell’s supplemental motion in February 2024. The court denied

Eibell’s motions. He appealed, and he and the court complied with Pa.R.A.P.

1925.

Eibell raises two issues for our appellate review:

[1.] Did the [trial] court err in failing to sever the ten complainants’ cases for trial, and in ruling that separate trials in each of these ten cases was not required[?]

[2.] Did the [trial] court err in finding that the verdict was not against the weight of the evidence?

See Eibell’s Brief at 4.

Eibell’s first issue implicates the consolidation and severance of charges.

Whether to grant a motion to consolidate separate indictments is within

the “sole discretion of the trial court[,] and such discretion will be reversed

only for a manifest abuse of discretion or prejudice and clear injustice to the

defendant.” Commonwealth v. Ferguson, 107 A.3d 206, 210 (Pa. Super.

2015) (internal citations and quotations omitted). The party appealing the

grant of consolidation bears the burden of establishing prejudice. See

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Commonwealth v. Patterson, 546 A.2d 596, 599–600 (Pa. 1988) (internal

citations omitted); Commonwealth v. Gray, 296 A.3d 41, 47 (Pa. Super.

2023). The appellant must show real potential for prejudice and not mere

speculation. Commonwealth v. Rivera, 773 A.2d 131, 137 (Pa. 2001). The

prejudice from the joinder “must be greater than the general prejudice any

defendant suffers when the Commonwealth’s evidence links him to a crime.”

Commonwealth v. Hobel, 275 A.3d 1049, 1067 (Pa. Super. 2022).

Pennsylvania Rule of Criminal Procedure 582(A)(1) provides that

offenses charged in separate indictments or informations may be tried

together if:

(a) the evidence of each of the offenses would be admissible in a separate trial for the other and is capable of separation by the jury so that there is no danger of confusion . . ..

Pa.R.Crim.P. 582(A)(1)(a); Commonwealth v. Stiles, 143 A.3d 968, 975

(Pa. Super. 2016). If the answer to these questions is “yes,” the court must

determine whether defendant will be unduly prejudiced by consolidation. See

Commonwealth v. Thomas, 879 A.2d 246, 260 (Pa. Super. 2005).3 As our

Supreme Court has further explained, the law encourages joinder of offenses

and consolidation of indictments “when judicial economy can thereby be

effected, especially when the result will be to avoid the expensive and time-

consuming duplication of evidence.” Commonwealth v. Johnson, 236 A.3d

3 Relatedly, the court may order separate trials if it appears a party may be

prejudiced by offenses tried together. See Pa.R.Crim.P. 583.

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1141, 1150 (Pa. Super. 2020) (en banc) (citation omitted); Gray, 296 A.3d

at 47. Juries are presumed to follow the trial court’s instructions, including

instructions relating to joined offenses. See Commonwealth v. Mollett, 5

A.3d 291, 313 (Pa. Super. 2010).

Eibell argues the court abused its discretion by consolidating, not

severing the cases because “the time frames were different, the factual

allegations were dissimilar, the relationships [among] [Eibell] and the

homeowners varied, [the] events took place in different counties and more

significantly[,] [] Eibell asserted unlike defenses to each case.” Eibell’s Brief

at 18. He further maintains that other crimes or bad acts are not admissible

to prove propensity to commit crime; the motive, intent, and res gestae

theories for the admission of the evidence are inapplicable; and his defense

of mistake in one case was impaired by consolidation. See id. at 19-25.

The trial court found that evidence of each offense would have been

admissible at a trial for the others to demonstrate, inter alia, absence of

mistake – that Eibell engaged in substantially similar conduct over nine distinct

cases, see Trial Court Opinion, 5/14/24, at 16, and as part of the history of

the case because the events largely overlapped in time, featured the “same

essential motifs,” and Eibell used money from some victims to pay off

expenses on other jobs, see id. at 17-18. The court further found no danger

of jury confusion, as evidenced by Eibell’s acquittal of the charges relating to

Freeberger, the tenth alleged victim. See id. at 19.

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We find the trial court did not abuse its discretion, and Eibell’s

consolidation/severance claim lacks merit. In addition to avoiding the

exhaustion of substantial resources in ten individual trials, evidence Eibell

demanded extensive deposits from his customers, performed demolition work

and then ceased work on the projects demonstrated a lack of mistake that

would have been admissible at a trial for the individual offenses. See

Commonwealth v. Cole, 167 A.3d 49, 57 (Pa. Super. 2017) (evidence of

similar burglaries and presence in the area of the burglaries at the time they

were committed admissible to show absence of mistake); Commonwealth v.

Golphin, 161 A.3d 1009, 1021 (Pa. Super. 2017 (evidence of abuse of victims

in similar manner around the same time admissible to show absence of

mistake).4

We also agree the evidence, involving different victims, different

projects, and different homes, was readily capable of separation by the jury,

as demonstrated by its acquittal of Eibell on one set of charges. See

Commonwealth v. Janda, 14 A.3d 147, 157 (Pa. Super. 2011) (rejecting

assertion of jury confusion where, inter alia, jury convicted Janda of some

crimes but acquitted him of other alleged crimes relating to another alleged

victim). Moreover, the court instructed the jury to decide each charge on its

4 Because we find that evidence would have been admissible for that purpose

at separate trials, we do not address either the trial court’s res gestae theory or the Commonwealth’s theory that evidence of each crime would have been admissible to demonstrate a common scheme, plan or design.

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own merits, see N.T., 10/25/23, 102-03, an instruction they are presumed to

have followed. See Mollett, 5 A.3d at 313. We do not perceive an abuse of

discretion by the trial court in consolidating offenses and denying severance.

Accordingly, we deny relief. See Johnson, 236 A.3d at 1150; Cole, 167 A.3d

at 57; Golphin, 161 A.3d at 1021.

Eibell’s second argument asserts the trial court abused its discretion by

declining to grant his post-verdict weight claim.

Our standard of review is settled:

The finder of fact is the exclusive judge of the weight of the evidence as the fact finder is free to believe all, part, or none of the evidence presented and determines the credibility of the witnesses.

As an appellate court, we cannot substitute our judgment for that of the finder of fact. Therefore, we will reverse a jury’s verdict and grant a new trial only where the verdict is so contrary to the evidence as to shock one’s sense of justice. A verdict is said to be contrary to the evidence such that it shocks one’s sense of justice when the figure of [J]ustice totters on her pedestal, or when the jury's verdict, at the time of its rendition, causes the trial judge to lose his breath, temporarily, and causes him to almost fall from the bench, then it is truly shocking to the judicial conscience.

Furthermore, where the trial court has ruled on the weight claim below, an appellate court’s role is not to consider the underlying question of whether the verdict is against the weight of the evidence. Rather, appellate review is limited to whether the trial court palpably abused its discretion in ruling on the weight claim.

Commonwealth v. Boyd, 73 A.3d 1269, 1274-75 (Pa. Super. 2013) (en

banc) (citation and internal quotation marks omitted).

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Eibell asserts there is no proof of his intent to defraud because he

obtained most of these projects through prior referrals, completed much of

the work, and ran into difficulties with employees and suppliers during COVID-

19. See Eibell’s Brief at 26-27. He further asserts he presented evidence of

prior, excellent work; he had unforeseen problems with certain jobs; the

relocation of his office prevented him from learning Forman wanted a refund;

and other victims terminated their contracts precipitously. See id. at 27-35.

The trial court determined the jury’s verdicts did not shock its

conscience because the evidence demonstrated Eibell’s intent to defraud, as

shown by his failure to complete projects or refund deposits despite repeated

demands, and acceptance of additional contracts knowing he did not have the

capacity to complete them. See Trial Court Opinion, 5/14/24, at 20-28.

The trial court did not abuse its discretion by denying Eibell’s weight

claim, which seeks appellate reassessment of the evidence in the light most

favorable to him, rather than our limited review of the trial court’s exercise of

discretion. Eibell presents nothing to show the trial court abused its discretion

by declining to overturn the jury’s credibility-based determinations. See

Boyd, 73 A.3d at 1274-75. No relief is merited.

Judgment of sentence affirmed.

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Date: 5/2/2025

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