Commonwealth v. McCarthy

180 A.3d 368

COMMONWEALTH of Pennsylvania

v.Todd Franklin MCCARTHY, Appellant

No. 345 MDA 2017

Superior Court of Pennsylvania.

Submitted July 3, 2017

Filed February 6, 2018

Reargument Denied April 4, 2018

Brian McNeil, Public Defender, York, for appellant.

James E. Zamkotowicz, Assistant District Attorney, York, for Commonwealth, appellee.

BEFORE: OTT, J., STABILE, J., and PLATT^* , J.

OPINION BY OTT, J.:

Todd Franklin McCarthy appeals from the judgment of sentence imposed on October 21, 2016, in the Court of Common Pleas of York County, following his jury convictions for theft by unlawful taking, access device fraud, and two counts of forgery.¹ The trial court sentenced McCarthy to, inter alia , an aggregate term of 18 to 36 months' imprisonment (with 383 days' credit for time served), followed by 10 years' probation.² In this appeal, McCarthy challenges the trial court's denial of his motion to dismiss, the trial court's evidentiary ruling that allowed evidence regarding the value and condition of the victim's home, and the discretionary aspects of the sentence. Based upon the following, we affirm.

The criminal charges against McCarthy arose from McCarthy's actions of having his elderly mother, Mary Ann Miller (the "victim"),³ sign blank checks that he made payable to himself, and obtaining money through ATM transactions using his mother's debit card. At the relevant time, McCarthy was his mother's agent under her power of attorney (POA). McCarthy was charged via a criminal complaint with the foregoing crimes on February 26, 2015. McCarthy was arrested on March 2, 2015, pursuant to a warrant issued on February 27, 2015. On August 10, 2015, at McCarthy's request, the trial court continued the case to October 16, 2015. On October 14, 2015, again at McCarthy's request, the trial court continued the case to December 7, 2015. On December 7, 2015, the parties agreed to list the case for the January 2016 term, which was to start on January 5, 2016, because the criminal court was not in session between December 7, 2015, and January 5, 2016. McCarthy was not tried in January 2016. The parties next appeared in court on July 25, 2016.⁴ On that date, the trial court continued the case to the September 2016 term. In so doing, the trial court noted that "[g]iven the amount of time that the parties anticipate is required to resolve this case to complete the trial and the [c]ourt's schedule, which only has available court time today and tomorrow, we will continue this case and put it back on the September trial term[.]" Trial Court Order, 7/25/16. On September 6, 2016, on the first day of the September 2016 term, the trial court granted the Commonwealth's request to move McCarthy's trial to the following week.

On September 9, 2016, McCarthy filed a Pa.R.Crim.P. 600 motion, seeking to dismiss with prejudice the charges filed against him. McCarthy argued that the Commonwealth failed to bring him to trial within 365 days of the filing of the criminal complaint. The trial court held a jury trial on September 12, 2016, which lasted two days. At the start of trial, the trial court held a hearing on McCarthy's Rule 600 motion. N.T. Trial, 9/12/16, at 4–5, 14–29. Following the hearing, the trial court denied the motion. McCarthy proceeded to trial, at which he objected, on the basis of relevance, to the Commonwealth's introduction of evidence relating to the value and condition of the victim's house while McCarthy was in charge of her care. The Commonwealth argued that it should be permitted to introduce such evidence for the following reasons:

[T]he Commonwealth's case is just to show that the, in terms of the house, that the—that after the, [the victim] in this case had moved out of the house and then ultimately became deceased, and [McCarthy] was the only one living there, that he did nothing except allow it to go to waste. He was not taking care of anything. He allowed the property to go to tax sale. He allowed it to fall into ruin. That at that point it was sold, it was sold for much less than the value, the assessed value of the house.

There are pictures, which I can hand up, showing the condition of the house. And it just goes to the overall circumstances. This is basically a circumstantial case, that [McCarthy] was wasting [the victim's] assets for his own benefit and doing nothing to take care of them, and that that, in turn, affected not only [the victim], but the rest of the heirs of the property.

N.T. Trial, 9/12/16, at 33–34. The trial court overruled McCarthy's objection. At trial, the Commonwealth introduced the testimony of several witnesses, which the trial court summarized as follows:

During trial, Angie Walker[,] a social worker with Visiting Angels, testified that her agency provided personal care for [the victim], [McCarthy's] elderly mother, in her home. Because [the victim] had been diagnosed with dementia, Walker regularly assessed her mental health status. Tests conducted in late 2012 and early 2013, as well as visual observations, established that [the victim's] mental status was deteriorating rapidly and she could no longer manage her financial affairs.

In April 2013, Walker told [McCarthy] that [the victim] could no longer properly administer her medication. [McCarthy] was considering placing his mother in a residential facility. However, when he learned that the cost would not be covered by insurance, [McCarthy] decided against the private facility.

Barbara Kelch, a Visiting Angels worker, cared for [the victim] beginning in 2011. [The victim's] mental and physical health declined during this period. [McCarthy] lived in [the victim's] residence beginning in 2013. Initially [Mccarthy] would ask [the victim] for her bankcard to pay for household necessities and return it to her. Later, however, [McCarthy] controlled [the victim's] finances. [The victim] occasionally complained that "[h]e's spending my money." [McCarthy] frequently left [the victim] alone and took her car to travel to the White Rose Bar and Grill. [McCarthy] did not perform household tasks.

Susan Heinle, president of Visiting Angels, testified that [the victim's] daughter had had power of attorney and made regular payments to Visiting Angels. When [McCarthy] assumed responsibility for [the victim's] finances, the "payments were sporadic" and often weeks late. Visiting Angels "would have to send repetitive notices, and ... threaten that we were going to put services on hold unless we received payment." When Visiting Angels stopped services, the business "repeatedly tried to get payment for that final balance, without success." In addition, real estate taxes on [the victim's] residence were "delinquent."

Megan Schrom, administrator at Rest Haven Nursing Home, testified that [the victim] began residing at the home in February 2014. Although [McCarthy] had told staff members that "there were adequate funds, money was not an issue," he failed to pay bills. Despite repeated attempts to communicate with [McCarthy], close to $60,000 in charges from Rest Haven remained unpaid. Eventually, Rest Haven executives took the unusual step of visiting [the victim's] residence. However, [McCarthy] refused to answer the door. Schrom noticed that the exterior of the residence and surrounding area were "really disgusting" and "there were multiple notices on the door." In addition, the physical condition of the residence was "dingy, dirty" and it "[l]ooked like it was going to fall down." Prior to [McCarthy's] residence, the home had been well-maintained.

Despite receiving no payment, Rest Haven continued to care for [the victim] until she died in March 2015. Rest Haven officials contacted the Area Agency on Aging Protective Services with their concerns.

Other than when [the victim] was first admitted to Rest Haven in February 2014, Schrom knew of no contact between [McCarthy] and [the victim] before her death more than a year later. Rest Haven could not reach [McCarthy] to fill out routine forms and [McCarthy] failed to attend meetings with staff to discuss [the victim's] care.

Sue Gordon, a protective service investigator with the Office on Aging, testified she became involved in [the victim's] case because "[b]ack taxes hadn't been paid on her home ... there were unpaid bills to the nursing home, to in-home care services ... and nobody was able to get ahold of [McCarthy]." Gordon identified documents that established [McCarthy] had power of attorney over his mother's affairs. Under a power of attorney, "you are supposed to keep your funds separate from the client's and manage those monies just in the best interest of the client." As a fiduciary, [McCarthy] was required to "act in the client's best interest" and use [the victim's] funds for [the victim].

In investigating the agency's concerns, Gordon attempted to interview [the victim] but "she was extremely confused, was on total care, and was bed bound at that point."

[The victim's] bank records showed numerous debit transactions at the White Rose as well as transactions for cash. Both direct and circumstantial evidence established that [McCarthy] conducted the transactions.

A retired industrial engineer, [the victim] had income from social security, an investment account, a pension, a life insurance policy, and rental property. During the time [McCarthy] had power of attorney, substantial sums were transferred from these accounts and moved to an account accessible by a debit card. The investigation determined that in August 2014 alone, 93 withdrawals totaling more than $10,000 were made for purchases that were not for [the victim]. Conservatively, monies improperly taken from the [the victim's] accounts and spent largely at the White Rose totaled more than $65,000 in nine months.

In an interview with police, [McCarthy] admitted that checks written for [the victim's] care were made out and signed by him as power of attorney; whereas he had [the victim] sign blank checks that he made payable to him. Checks he made payable to

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