Com. v. Gebhart, S.

Opinion

NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA, : IN THE SUPERIOR COURT OF : PENNSYLVANIA Appellee :

:

v. :

:

STEVEN DOUGLAS GEBHART, :

:

Appellant : No. 1773 MDA 2013

Appeal from the Judgment of Sentence entered on February 4, 2011 in the Court of Common Pleas of York County, Criminal Division, No. CP-67-CR-0005854-2008

BEFORE: BOWES, OTT and MUSMANNO, JJ. MEMORANDUM BY MUSMANNO, J.: FILED SEPTEMBER 22, 2014 the judgment of

sentence imposed following his conviction of theft by deception, corrupt organizations, and deceptive business practices.1 We affirm.

Because the parties are amply familiar with the facts underlying this case, we will not set them forth at length herein.2 In sum, Gebhart had incorporated five separate companies, all of which were involved in the

1 See 18 Pa.C.S.A. §§ 3922(a)(3), 911(b)(3), 4107(a)(2).

2 This Court previously set forth the voluminous evidence presented against Gebhart in a Memorandum pertaining to the direct appeal filed by one of - See Commonwealth v. Kile, 1359 MDA 2011 (Pa. Super. filed Sept. 24, 2012) (unpublished Memorandum at 3-14).

Beginning in 2004, Gebhart began to accept money from customers for construction projects he knew that he could not perform due to financial difficulties. Gebhart was aided in this regard by Kile, his employee and then-girlfriend. The Commonwealth pres paid Gebhart for work or materials and never received the promised goods or services. These witnesses all essentially testified that Gebhart and/or his employees had failed to complete the pole buildings for which Gebhart had accepted payment, or never performed any work at all. The Commonwealth

his fraudulent business practices. Additionally, the Commonwealth introduced into evidence recordings of conversations between Gebhart and Kile, while Gebhart was in jail, wherein they discussed their fraudulent

incarceration.

After the Commonwealth charged Gebhart with the above-mentioned offenses, the matter was scheduled for a jury trial. Gebhart subsequently filed several Pre-Trial Motions, including (1) a Motion seeking to dismiss the charges against him based on his claim of selective and vindictive

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basically structures built on top of the ground without a foundation and supported by poles. Pole buildings include garages, barns, and roofed picnic Kile, 1359 MDA 2011 (unpublished Memorandum at 4).

Motion to dismiss the charges based upon the running of the applicable statute of limitations; and (3) a Motion to dismiss the charges because of double jeopardy. The trial court denied all of these Motions.

representing Gebhart due to a conflict of interest because Attorney Ostrowski had previously represen -defendant, in connection with this case. Thereafter, Gebhart retained alternate counsel.

At the conclusion of the trial held in November 2010, the jury found Gebhart guilty of the above-mentioned offenses. The trial court sentenced

counsel did not timely file a direct appeal.

Following a procedural history that is not relevant to this appeal, in

April 2013, Gebhart filed a pro se Petition under the Post Conviction Relief

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seeking reinstatement of his direct appeal rights, nunc pro

tunc. The PCRA court granted relief, permitting Gebhart to file the instant appeal nunc pro tunc, and appointing him counsel. Gebhart timely filed a Notice of Appeal. In response, the trial court ordered Gebhart to file a Pa.R.A.P. 1925(b) concise statement of errors complained of on appeal, and Gebhart timely filed a Concise Statement.

On appeal, Gebhart presents the following issues for our review:

4 See 42 Pa.C.S.A. §§ 9541-9546.

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I. Did the [trial for dismissal based upon selective and vindictive prosecution?

II. Did the [trial c]ourt err in not dismissing the charges against [Gebhart,] as they were barred by the applicable statute of limitations?

III. Did the [trial c]ourt err in removing [Attorney Ostrowski,] thus unjustly denying [Gebhart] counsel of his choosing?

IV. Did the [trial c]ourt err in not dismissing the case or charges against [Gebhart] as a result of double jeopardy?

V. Did the jury err in finding [Gebhart] guilty[,] as that decision was not supported by sufficient evidence in that the Commonwealth failed to meet the elements necessary for the offenses?

Brief for Appellant at 5 (issues numbered).

Gebhart first argues that the trial court erred in denying his Selective/Vindictive Prosecution Motion. Id. at 16-18. Gebhart points out that in September 2006, he filed a federal civil rights action against a Northern York Regional police officer and a Pennsylvania State Trooper, and, according to Gebhart, the Commonwealth improperly filed the above- mentioned charges against him in retaliation for his civil rights action. Id. at 16.

Upon review, we conclude that Gebhart has waived his challenge to the denial of the Selective/Vindictive Prosecution Motion because his counsel expressly withdrew this Motion, with prejudice, at a pre-trial hearing. See

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N.T., 3/30/10, at 5-6; see also Pa.R.A.P. 302(a) (stating that an issue cannot be raised for the first time on appeal). However, even if this claim was not waived, we would conclude that it lacks merit.

In order to establish a prima facie case of selective prosecution, [an a]ppellant must establish, first, that others similarly situated were not prosecuted for similar conduct, and,

selection was based on impermissible grounds such as race, religion, the exercise of some constitutional right, or any other such arbitrary classification. the doctrine of separation of powers, the courts will not lightly interfere with an

Commonwealth v. Murphy, 795 A.2d 997, 1000 (Pa. Super. 2002) (citations omitted).

With regard to a claim of prosecutorial vindictiveness, this Court has observed that there are

two distinct situations in which the appearance of vindictiveness may require inquiry and judicial intervention. The first is where a prosecutive decision is based on discriminatory grounds of race, religion, national origin or other impermissible classification. The other situation is where the accused is treated more harshly because he successfully exercised a lawful right, e.g.[,] the right to seek a new trial.

Commonwealth v. Smith, 664 A.2d 622, 628-29 (Pa. Super. 1995) (citations omitted).

Motion, the trial court correctly rejected this claim, reasoning as follows:

[Gebhart] has failed to meet his burden of establishing selective prosecution[,] as there was no credible evidence presented that others similarly situated were not prosecuted for similar conduct.

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***

true that the current charges in the above-captioned matter were filed after [Gebhart] filed his federal civil rights lawsuit.

However, the [trial c]ourt found the testimony of the officers and [the] Chief of Police to be credible and determined that there was a valid explanation as to why the charges were filed when they were filed.

practices, the investigation was ongoing[,] even though [Gebhart] may not have been aware of that fact. It was clear from the credible evidence presented by the Commonwealth that these charges were not filed to punish [Gebhart] for filing the federal civil rights lawsuit.

Order, 6/29/13, at 2-3 (citations to record omitted). We would affirm based

issue, if it was not waived. See id.

In his second issue, Gebhart points out that the applicable statute of limitations for each of the offenses of which he was convicted is five years, and, according to Gebhart, the trial court erred in refusing to dismiss these charges, as they were barred by the statute of limitations. See Brief for Appellant at 19-20; see also 42 Pa.C.S.A. § 5552(b) (providing for a five- year statute of limitations for the offenses of theft by deception, corrupt organizations, and deceptive business practices). Gebhart argues that at trial regarding alleged criminal conduct that occurred more than five years before the

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Commonwealth filed the charges against Gebhart. See Brief for Appellant at 19-20.

The trial court addressed this claim in its Opinion and correctly determined that the charges were not barred by the statute of limitations. See Trial Court Opinion, 12/27/13, at 1-6. We affirm based on the trial See id.

As an addendum, we observe that in situations, such as in the instant case, where the Commonwealth charges an individual alleging a continuing course of criminal conduct, the statute of limitations does not begin to run until the time when the complicity of the accused in the course of conduct is terminated. See 42 Pa.C. n offense is committed either when every element occurs, or, if a legislative purpose to prohibit a continuing course of conduct plainly appears, at the time when the

Each of the offenses implicated in the instant case specifically allow the Commonwealth to proceed with the charges as a course of conduct. See 18 Pa.C.S.A. §§ 3903(c)(3), 911(c), 4107(a.1)(2).

Next, Gebhart argues that the trial court erred, and improperly deprived him of the counsel of his choosing, when it removed Attorney Ostrowski. See Brief for Appellant at 20-22. We disagree.

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The trial court addressed this claim and set forth the applicable law in its Opinion, and we affirm on this basis in rejecting Ge See Trial Court Opinion, 12/27/13, at 9-10.

In his fourth issue, Gebhart contends that the prosecution violated his double jeopardy rights. See Brief for Appellant at 22-23.5 The trial court addressed this claim in its Opinion, and discussed the relevant background and law. See Trial Court Opinion, 12/27/13, at 6-9.

jeopardy violation occurred in this case. See id.

Finally, Gebhart challenges the sufficiency of the evidence supporting his convictions. See Brief for Appellant at 23-26. Gebhart points out that

criminal intent. Id. at 25-26. According to Gebhart, the Commonwealth failed to present sufficient evidence for the jury to find intent:

The testimony was clear that [Gebhart] had a business and that he entered into a number of contracts to perform services in exchange for money. In some of the cases, he performed some work[,] and in [other cases,] there was testimony that he did not perform any work. What was not disputed is that [Gebhart]

was incarcerated through no fault of his own for a period of over one year. While in jail, he did everything possible to get work done on the contracts. [Gebhart] even contacted customers to inform them of his difficulties. There was absolutely no intent on

5 Gebhart advances scant analysis in support of this claim. He asserts that

the Commonwealth had previously charged him with theft by deception in other cases, and some of these charges were either dismissed or withdrawn. Brief for Appellant at 22-23.

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contract[s]. Rather[,] he did everything possible. Therefore, the [trial c]ourt erred in finding that the verdicts of guilty were supported by sufficient evidence.

Id. at 26.

Initially, we note that

when challenging the sufficiency of the evidence on appeal, -ordered Pa.R.A.P. 1925(b) concise]

statement must specify the element or elements upon which the evidence was insufficient in order to preserve the issue for appeal. Such specificity is of particular importance in cases

each of which contains numerous elements that the Commonwealth must prove beyond a reasonable doubt.

Commonwealth v. Gibbs, 981 A.2d 274, 281 (Pa. Super. 2009) (citations and quotation marks omitted). If the appellant does not specify such elements, the sufficiency claim is deemed waived. Id. It is also well settled

to allow the trial court an opportunity to identify the issues raised on appeal, he/she has provided the functional equivalent of no Concise Statement at Commonwealth v. Cannon, 954 A.2d 1222, 1228 (Pa. Super. 2008)

(citations and internal quotation marks omitted); see also Pa.R.A.P.

ruling or error that the appellant intends to challenge with sufficient detail to identify all pertinent issues for the judge

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Here, Gebhart, in his Rule 1925(b) Concise Statement, raised a vague challenge to the sufficiency of the evidence,6 in which he failed to specify the element or elements, or even the specific crimes, forming the basis of his sufficiency challenge. Based upon this deficiency, the trial court determined

proper review of his claim of insufficient evidence. See Trial Court Opinion,

conclude that Gebhart has waived his sufficiency challenge. See Gibbs, 981 A.2d at 281 (holding that the appell where he failed to specify in his Rule 1925(b) concise statement which convictions or the elements of the crimes he was challenging).7 Judgment of sentence affirmed.

Judgment Entered.

Joseph D. Seletyn, Esq. Prothonotary

Date: 9/22/2014

6 and testimony presented at trial, by finding [Gebhart] guilty, the verdict of

Statement, 10/22/13, at ¶ 8. 7

court, would determine that it does not entitle him to relief for the reasons See Trial Court Opinion, 12/27/13, at 11-12.