Commonwealth v. Pedro

1

COMMONWEALTH OF PENNSYLVANIA v. MITCHELL EDWARD PEDRO Appellant COMMONWEALTH OF PENNSYLVANIA v. MITCHELL EDWARD PEDRO Appellant

Nos. 1680 MDA 2021, 1685 MDA 2021

Nos. J-S35014-22, J-S35015-22

Superior Court of Pennsylvania

March 7, 2023

NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

Appeal from the Judgment of Sentence Entered November 2, 2021 In the Court of Common Pleas of Sullivan County Criminal Division at No(s): CP-57-CR-0000063-2019, CP-57-CR-0000026-2019

BEFORE: BENDER, P.J.E., McLAUGHLIN, J., and STEVENS, P.J.E ^[*]

MEMORANDUM

BENDER, P.J.E.

Mitchell Edward Pedro appeals from the judgment of sentence of 27 to 72 months of incarceration entered following his convictions for three counts of home improvement fraud.^[1] We affirm but remand for entry of a corrected judgment of sentence order imposing the recidivism risk reduction incentive ("RRRI") minimum sentence as required by law.

The following facts pertain to the charges filed at docket CP-57-CR-0000063-2019. Appellant was the owner of Mitchell E. Pedro Carpentry. In July of 2018, Irene Sigler, a 73-year-old woman, responded to an advertisement in the Sullivan Review newspaper promoting Appellant's business. Ms. Sigler owned a vacation cabin in Sullivan County that required roof repairs. She and her husband informed Appellant that the job needed to be completed promptly as they expected company in a few weeks. Appellant wrote a proposal, which subsequently became the parties' contract, and specifically promised that the work would be done within two weeks. On July 29, 2018, Ms. Sigler wrote Appellant a check for the quoted figure of $2,773.50, which Appellant cashed the next day.

As of August 29, 2018, Appellant had not returned to the Siglers' cabin and ignored their communications. Ms. Sigler eventually emailed Appellant, informing him that they no longer wanted his services and requested a refund.

Appellant did not respond to the email. Instead, he visited the Siglers' cabin the next day and dropped off a man named Eddie to do work. When the Siglers confronted Appellant, he claimed that the repairs had already been done and that Eddie needed an hour to finish the work. Appellant did not answer the Siglers' inquiries regarding when the work had been done. Eddie tore a hole in the ceiling but stopped work shortly thereafter and drank beer on their porch.

That evening, Appellant called the Siglers and informed them that he had purchased drywall that he wished to store at the cabin. The Siglers reluctantly agreed since Appellant still had their money but instructed Appellant not to install the drywall until they confirmed that the roof was fixed. Four days later, following a rainfall, the Siglers visited their cabin and observed leaks. They contacted Appellant and asked him to visit the property. He did not show. On September 7, 2018, the Siglers again demanded a refund. Appellant called at approximately 8 p.m. and offered to meet in person to discuss the matter, which the Siglers declined due to the late hour. Appellant abruptly ended the conversation.

The Siglers then sent Appellant a demand letter via certified mail to the address listed on the contract, which was returned as undeliverable. The Siglers had no further contact with Appellant and did not receive a refund. They then hired another contractor to complete the repairs.

The Commonwealth charged Appellant with two counts of home improvement fraud. At count one, the Commonwealth charged Appellant with violating 73 P.S. § 517.8(a)(2), and at count two, it charged a violation of 73 P.S. § 517.8(a)(8). Those crimes read as follows:

(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:

. . . .

(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;

. . . .

(8) directly or indirectly publishes a false or deceptive advertisement in violation of State law governing advertising about home improvement.

73 P.S. § 517.8.

Regarding count two, the Home Improvement Consumer Protection Act ("HICPA"), 73 P.S. §§ 517.1-517.19, requires contractors performing home improvement services^[2] to register with the Bureau of Consumer Protection ("Bureau"), a division of the Office of Attorney General of Pennsylvania. 73 P.S. § 517.3(a). The Bureau then issues a registration certificate, which includes a unique registration number. Renewals are required every two years. A contractor is required to include the registration number in any advertisement distributed within the Commonwealth. 73 P.S. § 517.6.

Appellant registered with the Bureau in August of 2011. That registration expired on August 11, 2013, and he failed to renew it.^[3] Thus, the advertisements he placed in the newspaper, which included his registration number, falsely conveyed that he was validly registered with the Bureau.

The following facts pertain to the charges filed at docket CP-57-CR-0000026-2019. James Bausher, seventy-one-years old, and his wife, Bonnie, who was sixty-nine-years old, also owned a vacation home in Sullivan County that required roofing repairs. The Baushers saw Appellant's ad in the Sullivan Times and responded. Appellant visited the property in their absence and wrote up a proposal.

On June 27, 2018, Mr. Bausher wrote a check for $3,450, the amount requested by Appellant as a down payment. Appellant did not arrange a schedule with the Baushers as planned, prompting Mr. Bausher to call Appellant on July 9, 2018. Mr. Bausher asked Appellant if he had received the check; Appellant stated he had not. Mr. Bausher told Appellant he would check with his bank to determine if it had been cashed, but Appellant advised him not to do so. Mr. Bausher visited his bank and learned that Appellant had endorsed and cashed the check on June 29, 2018. When confronted, Appellant claimed he mistook the down payment for another client. Appellant promised to begin work the week of July 16, but failed to appear onsite. Mr. Bausher called Appellant during this time period to ask when work would begin but Appellant would not give a definitive answer.

Finally, on August 14, 2018, Mr. Bausher told Appellant that if he failed to start work by August 31, he would take steps to get his money back. Appellant showed up on August 31 and unloaded tarps at the property. He claimed, however, that he would not be able to start work as he had trouble finding workers to assist. Eventually, Mr. Bausher sent a demand letter via certified mail, which was received and signed for by a woman named Marla. Appellant did not return the money, nor did he ever start the work. The Commonwealth charged Appellant with four counts, including, at count four, a violation of 73 P.S. § 517.8(a)(8).

The Commonwealth consolidated the two dockets, and the parties proceeded to a jury trial on August 23, 2021. At docket CP-57-CR-0000063-2019, the jury found Appellant guilty of both counts of home improvement fraud. At CP-57-CR-0000026-2019, the jury convicted Appellant of count four and acquitted him of the other three counts.

On November 2, 2021, the trial court sentenced Appellant to 9 to 24 months of incarceration at each of the three counts, set consecutively to each other for the aggregate sentence of 27 to 72 months of incarceration.

Appellant filed a timely post-sentence motion, which was denied on November 22, 2021.^[4] Appellant timely appealed^[5] and filed a Pa.R.A.P. 1925(b) statement. The trial court filed its responsive Rule 1925(a) opinion, and we now address the issues presented:

1. Did the Trial Court err in denying the Post Sentence Motion when HICPA states no Criminal penalty for failing to register as set forth in 73 P.S. § 517.8, Home Improvement Fraud, being specified by the Legislature Regarding advertising an alleged expired registration number when no notice is provided that criminal penalties attach to the conduct alleged to have been done by Appellant in violation of due process to convict Appellant, the Trial Court had no jurisdiction for a criminal matter that could have been resolved by civil remedies and the verdict is so contrary to the evidence it shocks one's sense of justice.

2. Did the Trial Court err in denying the Motion to Dismiss at Trial of August 23, 2021 even though HICPA states no Criminal penalty for failing to register as set forth in 73 P.S. § 517.8, Home Improvement Fraud, being specified by the Legislature Regarding advertising an alleged expired registration number when no notice is provided that criminal penalties attach to the conduct alleged to have been done by Appellant in violation of due process to convict Appellant.

3. Did the Trial Court err in denying the Motion for Leave to File Petition for Habeas Corpus of March 23, 2021 by the Order of April 20, 2021 even though Appellant was represented by his third attorney and provided cause for the delay in the filing pursuant to PA.R.Crim. P. 579 which amounted to a break down in the legal process and the interests of the justice required the meritorious Petition for Habeas Corpus be heard by the Trial Court.

4. Did the Trial Court err in denying the Appellant's request for bail pending appeal at the time of Sentencing by failing to state on the record the reasons for his decision of

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