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NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
COMMONWEALTH OF PENNSYLVANIA,
IN THE SUPERIOR COURT OF
PENNSYLVANIA
Appellee
v.
GARY BLANK,
Appellant
No. 3164 EDA 2012
Appeal from the Judgment of Sentence September 17, 2012
In the Court of Common Pleas of Bucks County
Criminal Division at No(s): CP-09-CR-0006778-2011
BEFORE: FORD ELLIOTT, P.J.E., BOWES, and OTT, JJ.
MEMORANDUM BY BOWES, J.:
FILED MARCH 18, 2014
Gary Blank appeals from the judgment of sentence of eighteen months
to four years imprisonment followed by four years probation and restitution
in the amount of $161,495.62. Sentence was imposed after Appellant was
convicted at a bench trial of theft by unlawful taking, theft by failure to make
required disposition of funds, theft by deception, access device fraud,
receiving stolen property, and conspiracy.
The convictions arose after
Appellant stole money from a trust that his deceased wife, Theresa Blank,
established for the benefit of their minor daughter, Alicia. We affirm.
On November 12, 2001, Theresa, who had breast cancer, created a
trust, and that trust named Alicia as the sole beneficiary.
The trust was
funded with all of Theresa’s personal assets. In 2001, Appellant was a drug
addict, and, although he claimed that he was no longer addicted to drugs by
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the time of his wife’s death, he has not been employed since 2002. Exhibit
1 (Hearing 3/27/12). The co-trustees of the November 12, 2001 trust were
Appellant and Mark Mangano, the decedent’s brother. The trust document
provided that its assets were solely “for the benefit of” Alicia, and
specifically, for her “maintenance, support, health and education” as
evidenced by Alicia’s standard of living during the year preceding the trust’s
creation.
Commonwealth Exhibit 2 (Trial 4/3/12), at 2, 3.
This trust
contained the identical dispositive terms as an earlier trust that Theresa
created on June 19, 2001. The only difference was a change in the name of
a successor trustee.
Theresa died from breast cancer on April 13, 2002,
when Alicia was five years old.
Appellant instituted a malpractice action
against medical providers for failing to timely diagnose the cancer, and that
case was settled for $1,000,000. Exhibit 1 (Hearing, 3/27/12). Appellant
became Alicia’s sole caretaker after his wife’s death.
The trial evidence was as follows. In February 2006, the trust assets,
which consisted of $539,007.24, were placed in a trust account for Alicia at
Merrill Lynch.
statements.
The estate attorney had access to the Merrill Lynch
Mr. Mangano, who was originally charged as Appellant’s co-
defendant, testified against Appellant at trial. In exchange for his promise
to testify truthfully, Mr. Mangano was sentenced to probation and $50,000 in
restitution.
Mr. Mangano reported that in August 2006, Appellant claimed that he
was entitled to $158,676.14 from the trust assets as his marital share of the
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estate.
Mr. Mangano assisted Appellant in obtaining the transfer of this
amount
of
money
from
the
trust
account
at
Merrill
Lynch.
The
Commonwealth established that those funds were placed into an account in
Appellant’s name at Wachovia Bank.
In March 2008, Mr. Mangano and Appellant created an account in the
trust’s name at Citizens Bank. At the beginning of March, the balance in the
Merrill Lynch account was $405,000.
During March, in a series of
withdrawals, Mr. Mangano and Appellant placed all of the money from the
Merrill Lynch account into the account at Citizens Bank. The estate attorney
did not have access to any statements regarding the Citizens Bank account.
In July 2008, at the suggestion of Citizens Bank personnel, Appellant and
Mr. Mangano opened a second trust account, an interest-bearing money
market account, at that institution.
Mr. Mangano testified that in April 2008, he and Appellant went to
Citizens Bank, withdrew $35,000, and split that money between themselves.
Appellant told Mr. Mangano that he could keep his one-half of the money for
his personal use. The Commonwealth introduced into evidence a copy of an
April 1, 2008 check from the trust account made payable to cash in the
amount of $35,000, and it was signed by Mr. Mangano and Appellant.
In
July 2008, the co-trustees withdrew $40,000, which they divided equally
between them.
The Commonwealth introduced into evidence a copy of a
July 30, 2008 check from the trust account made payable to cash in the
amount of $40,000, and it was signed by Mr. Mangano and Appellant.
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Thereafter, the two co-trustees made a series of withdrawals from the
Citizens Bank money market account. Mr. Mangano testified that Appellant
received all of the money from the following series of withdrawals: 1)
$20,000 on November 28, 2008; 2) $20,000 on January 23, 2009; 3)
$5,000 on March 7, 2009; 4) $22,500 on April 17, 2009; and 5) $23,000 on
May 14, 2009. Mr. Mangano stated that Appellant told Mr. Mangano that he
was going to use $7,500 of the amount removed from the trust account on
April 17, 2009, to pay his criminal defense attorney.
Appellant and Mr. Mangano were removed as co-trustees of Alicia’s
trust based upon the following events. In 2005, Appellant hired Peter Klenk,
Esquire, to perform work on behalf of the trust, including an accounting.
After Appellant refused to pay Mr. Klenk for his services, Mr. Klenk initiated
a court action as a creditor of the trust. Appellant ignored a directive from
the orphans’ court to prepare a statement of the trust assets.
Appellant
then failed to comply with a subsequent orphans’ court order to file a full
accounting.
Thereafter, in a final decree dated February 4, 2009, both
Appellant and Mr. Mangano were removed as trustees, and Richard Margolis,
Esquire, was appointed by the court to serve as the new trustee.
The
Commonwealth established that a copy of the decree removing Appellant as
trustee was mailed to Appellant at 3147 Pasqualone Boulevard, Bensalem.
That address was the marital residence, where Appellant continued to reside
with Alicia following Theresa’s death.
Mr. Mangano admitted that he
received a copy of this decree at his residence.
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On July 10, 2009, Appellant and Mr. Mangano withdrew $230,000 from
the Citizens Bank money market account and deposited it at Wachovia Bank.
Two accounts were created at Wachovia Bank: a savings account for the
benefit of Alicia and a checking account in Appellant’s sole name. After this
transfer was made, Mr. Mangano decided that he did not want to be involved
in the administration of the trust, and he was not privy to what transpired
with respect to the funds deposited at Wachovia Bank.
After being contacted by Mr. Margolis and Mr. Margolis’ attorney about
their inability to locate trust assets, Bensalem Township Police Detective
Stephen Clark conducted an investigation in the matter. He obtained copies
of the statements from Citizens Bank and Wachovia Bank accounts.
He
testified that, after the trust money was placed at Wachovia Bank, there
were a series of “wire transfers.”
N.T. Trial, 4/4/12 (a.m.) at 61.
These
transfers were from Alicia’s savings account into Appellant’s checking
account and did not cease until May 2010, when the trust assets were frozen
by court order.
Through this series of transfers, Alicia’s Wachovia Bank
account, which had an initial balance of $230,000, was reduced to
$157,522.85.
The Commonwealth established that the sole source of deposits into
Appellant’s Wachovia Bank account was from Alicia’s Wachovia Bank
account.
From his account, Appellant paid his mortgage and utility bills,
which amounted to approximately $2,000 a month.
Other debits from
Appellant’s personal account at Wachovia Bank included: payments to
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singles.net; a purchase at a lingerie store; $4,000 in U-2 tickets; a $428.35
payment for a district court fine; $65.00 at a bar; $6,000 to the law firm of
Stolee and Jonas; a purchase at a liquor store; and $1,200 to defense
attorney Michael Parlow.
On May 17, 2010, Detective Clark filed a restraining order to freeze
the remaining funds in Alicia’s accounts. By that time, the trust balance at
Citizens Bank was $11,394.80; the balance of the Wachovia Bank savings
account was $157,522.85. There were no trust assets at Merrill Lynch.
Based on these events, Appellant was charged with the above
enumerated offenses of theft, receiving stolen property, access device fraud,
and conspiracy.
Appellant originally was represented by the public
defender’s office.
His bench trial commenced on April 3, 2012, where
Appellant appeared pro se.
Appellant moved to suppress bank records
recovered pursuant to two search warrants, which Appellant claimed were
not supported by probable cause.
proceeded.
That motion was denied, and the case
When the trial resumed on April 4, 2012, Appellant was
represented by private counsel. The final day of trial occurred on June 28,
2012, where Appellant again appeared pro se. Private counsel withdrew his
appearance with the court’s approval. Appellant was convicted of all charges
on June 28, 2012, and proceeded to sentencing on September 17, 2012.
Appellant filed a pro se notice of appeal on October 10, 2012 from his
judgment of sentence.
Present counsel entered his appearance on
Appellant’s behalf, and a counseled brief was filed in this Court.
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Appellant presents two issues for our review:
A.
Did the suppression court err in failing to suppress the
fruits of two search warrants?
B.
Was the evidence sufficient to support the guilty verdicts?
Appellant’s brief at 4. Initially, we note that since “a successful sufficiency
of the evidence claim warrants discharge on the pertinent crime, we must
address this issue first.”
Commonwealth v. Toritto, 67 A.3d 29,
33 (Pa.Super. 2013) (en banc).
We therefore will address Appellant’s
contentions in reverse order. In assessing the sufficiency of the evidence,
we evaluate the record “in the light most favorable to the verdict
winner giving the prosecution the benefit of all reasonable
inferences to be drawn from the evidence.” Commonwealth v.
Widmer, 560 Pa. 308, 744 A.2d 745, 751 (Pa. 2000).
“Evidence will be deemed sufficient to support the verdict when
it establishes each material element of the crime charged and
the commission thereof by the accused, beyond a reasonable
doubt.” Commonwealth v. Brewer, 876 A.2d 1029, 1032
(Pa.Super. 2005). Nevertheless, “the Commonwealth need not
establish guilt to a mathematical certainty.” Id.; see also
Commonwealth v. Aguado, 760 A.2d 1181, 1185 (Pa.Super.
2000) (“The facts and circumstances established by the
Commonwealth need not be absolutely incompatible with the
defendant's innocence.”). Any doubt about the defendant's guilt
is to be resolved by the fact finder unless the evidence is so
weak and inconclusive that, as a matter of law, no probability of
fact can be drawn from the combined circumstances. See
Commonwealth v. DiStefano, 782 A.2d 574, 582 (Pa.Super.
2001).
The Commonwealth may sustain its burden by means of
wholly circumstantial evidence. See Brewer, 876 A.2d at 1032.
Accordingly, “the fact that the evidence establishing a
defendant's participation in a crime is circumstantial does not
preclude a conviction where the evidence coupled with the
reasonable inferences drawn therefrom overcomes the
presumption of innocence.” Id. (quoting Commonwealth v.
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Murphy, 795 A.2d 1025, 1038–39 (Pa.Super. 2002)).
Significantly, we may not substitute our judgment for that of the
fact finder; thus, so long as the evidence adduced, accepted in
the light most favorable to the Commonwealth, demonstrates
the respective elements of a defendant's crimes beyond a
reasonable doubt, the appellant's convictions will be upheld.
See Brewer, 876 A.2d at 1032.
Commonwealth v. Lynch, 72 A.3d 706, 707-08 (Pa.Super. 2013) (citation
omitted). Additionally, we do not analyze a sufficiency claim on a diminished
record, and we review all evidence actually received.
Commonwealth v.
Koch, 39 A.3d 996 (Pa.Super. 2011). Accordingly, we consider the evidence
that Appellant contends should have been suppressed.
We now outline the elements of the pertinent offenses.
A person
commits theft by unlawful taking or disposition “if he unlawfully takes, or
exercises unlawful control over, movable property of another with intent to
deprive him thereof.” 18 Pa.C.S. § 3921(a). Deprivation of property occurs
if a person: (1) “withhold[s] property of another permanently;” or (2)
“dispose[s] of the property so as to make it unlikely that the owner will
recover it.” 18 Pa.C.S. § 3901. Theft by Deception is defined by 18 Pa.C.S.
§ 3922 which provides, in relevant part, that “[a] person is guilty of theft if
he intentionally obtains or withholds property of another by deception.” 18
Pa.C.S. § 3922(a). Deception occurs when a person “creates or reinforces a
false impression.”
Id.
Theft by failure to make required disposition is
outlined in 18 Pa.C.S. § 3927(a):
A person who obtains property upon agreement, or subject to a
known legal obligation, to make specified payments or other
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disposition, whether from such property or its proceeds or from
his own property to be reserved in equivalent amount, is guilty of
theft if he intentionally deals with the property obtained as his
own and fails to make the required payment or disposition. The
foregoing applies notwithstanding that it may be impossible to
identify particular property as belonging to the victim at the time
of the failure of the actor to make the required payment or
disposition.
Receiving stolen property has the following elements, “A person is
guilty of theft if he intentionally receives, retains, or disposes of movable
property of another knowing that it has been stolen, or believing that it has
probably been stolen, unless the property is received, retained, or disposed
with intent to restore it to the owner.” 18 Pa.C.S. § 3925.
Appellant was convicted of access device fraud under 18 Pa.C.S.
§ 4106(a)(2), which provides that someone is guilty of that offense where
he
publishes, makes, sells, gives, or otherwise transfers to another,
or offers or advertises, or aids and abets any other person to use
an access device knowing that the access device is counterfeit,
altered or incomplete, belongs to another person who has not
authorized its use, has been revoked or canceled or for any
reason is unauthorized by the issuer or the device holder[.]
An access device includes, “Any card, including, but not limited to, a credit
card, debit card and automated teller machine card, plate, code, account
number, personal identification number or other means of account access
that can be used alone or in conjunction with another access device to
obtain money, goods, services or anything else of value or that can be used
to transfer funds.” 18 Pa.C.S. § 4106(d).
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Finally, an individual is
guilty of conspiracy with another person or persons to commit a
crime if with the intent of promoting or facilitating its
commission he:
(1) agrees with such other person or persons
that they or one or more of them will engage in
conduct which constitutes such crime or an attempt
or solicitation to commit such crime; or
(2) agrees to aid such other person or persons
in the planning or commission of such crime or of an
attempt or solicitation to commit such crime.
18 Pa.C.S. § 903(a).
Herein, the evidence established that Appellant removed significant
sums of money from a Citizens Bank trust account that was to be spent
solely for the benefit of Alicia, who was the legal owner of the money, and,
to the extent that Mr. Mangano was not given the money, Appellant retained
those funds. After Mr. Mangano refused to be involved with the Wachovia
Bank accounts, Appellant alone transferred Alicia’s money in the Wachovia
Bank trust account into an account that was in Appellant’s sole name, and,
in turn, spent some of that money on his own personal expenses.
These
actions at Wachovia Bank likewise constituted theft of Alicia’s funds and
receipt of stolen property.
Appellant committed theft by deception by giving the false impression
that the trust funds were to be spent on Alicia when he placed money from
the Merrill Lynch trust account into a Citizens Bank account titled in the trust
name, but took and retained money from that account for himself.
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performed another false impression that he was going to use trust money for
Alicia’s benefit when he placed trust money from Citizens Bank into a trust
account at Wachovia Bank, but then used that money by transferring it into
his own account. Appellant was guilty of theft by failure to make required
disposition of funds because he continually took money from the trust and
did not make the required disposition of those amounts by spending them all
on Alicia. Appellant specifically told Mr. Mangano that he was going to pay
his attorney’s fees from trust money, which was a failure to make the
required disposition of trust funds. Further, Appellant used Alicia’s money to
satisfy personal expenses with his expenditures from Wachovia Bank.
Appellant repeatedly committed access device fraud when he used
account numbers to access accounts belonging to Alicia’s trust, and took
money from those accounts or placed money from them into an account in
his sole name.
Appellant was not authorized to personally retain account
funds in the trust’s name or to transfer trust funds into an account in his
sole name.
The conspiracy was established because the transactions
involving the removal of the funds in derogation of the trust terms at Merrill
Lynch and Citizens Bank were done with the agreement and aid of
Mr. Mangano. Hence, the proof was sufficient to sustain the convictions.
Appellant’s specific challenges are as follows.
First, he claims that
there was no evidence that he did not spend the money on Alicia, as
required by the terms of the trust. We disagree. Mr. Mangano reported that
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Appellant admitted to Mr. Mangano that he was going to use $7,500 of
Alicia’s money to pay for Appellant’s personal attorney’s fees.
This
admission establishes that Appellant did not spend that money on behalf of
Alicia.
Additionally, the Commonwealth proved that money from Alicia’s
account at Wachovia Bank was the only source of money in an account in
Appellant’s sole name.
Money from the Wachovia Account in Appellant’s
name went to pay personal expenses that could not be incurred on behalf of
a young girl, including lawyer’s fees, liquor, lingerie, and a dating website.
Finally, we observe the following. From March 2008 to May 2010, the
trust assets went from $400,000 to $170,000. This amount approximates
$115,000 yearly. The trial evidence established that Appellant’s mortgage
and utilities were $2,000 a month. Assuming, arguendo, that the trust could
properly be charged with all of the housing expenses, which also inured to
the benefit of Appellant himself, that means that Appellant would have had
to spend about $90,000 yearly on Alicia. It does not cost $90,000 a year to
provide a child with clothing, food, and entertainment expenses.
Appellant also maintains that the Commonwealth failed to prove that
he did not intend to repay the money to Alicia. Initially, we observe that the
Commonwealth established that Alicia was the legal owner of property that
Appellant personally took. We are unaware of any case law, and Appellant
refers us to none, that requires the Commonwealth to prove that a thief
does not intend to repay money that belongs to another where the money in
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question has not been loaned to the thief by the owner and where the thief
has appropriated the funds for his own use.
Moreover, Appellant allowed
Mr. Mangano to take money belonging to Alicia and told him to use it as he
wished. This action established that Appellant did not intend to repay the
trust for that money since it was retained by another person. Additionally,
the Commonwealth presented evidence that Appellant was unemployed after
2002 and did not have the means to repay the vast sums of money that he
removed from the trust. Hence, we reject this challenge to the sufficiency of
the evidence.
In connection with his conviction for access device fraud, Appellant
suggests that there was no proof that he had notice that his trusteeship was
revoked. This argument does not implicate the sufficiency of the evidence.
Appellant accessed the trust accounts at Citizens and Wachovia Banks and
transferred money from Alicia’s accounts. He either took the money outright
or transferred the money into accounts in his sole name. He also used his
debit card for personal expenses on an account containing Alicia’s money.
Whether or not he was still trustee, he was not authorized to access Alicia’s
money and place it in his own name. Finally, Appellant suggests that there
was merely a co-mingling of funds.
We disagree.
The Commonwealth
proved that trust funds were consistently removed from trust accounts and
that Appellant personally retained those amounts or placed them in bank
accounts in his sole name. The Commonwealth also proved that there were
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no deposits from Appellant into a trust account.
Accordingly, we reject
Appellant’s challenges to the sufficiency of the evidence.
We now address Appellant’s first position.
Appellant maintains that
the warrants used to obtain the bank records for the accounts in his name
and that of the trust at Citizens and Wachovia Banks were infirm.
Specifically, he avers that there was nothing in the affidavits “to suggest
that Appellant had committed a crime.”
Appellant’s brief at 15.
Probable
cause, which is tasked to the magisterial district judge to ascertain, must be
premised solely upon the facts outlined within the four corners of the
warrant itself. Commonwealth v. Harvard, 64 A.3d 690 (Pa.Super. 2013).
In this context, our review “of a suppression court's ruling is confined
primarily to questions of law.” Id. at 696 (citation omitted). Police possess
probable cause when “the facts and circumstances within the officer's
knowledge are sufficient to warrant a person of reasonable caution in the
belief that an offense has been or is being committed.” Id. at 697 (quoting
Commonwealth v. Hernandez, 935 A.2d 1275, 1284 (Pa. 2007)).
The issuing authority’s responsibility is “simply to make a practical,
common-sense decision whether, given all of the circumstances set forth in
the affidavit before him, including the veracity and basis of knowledge of
persons supplying hearsay information, there is a fair probability that . . .
evidence of a crime will be found in a particular place.” Harvard, supra at
697 (quoting Commonwealth v. Torres, 764 A.2d 532, 537 (Pa. 2001)).
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When reviewing the magisterial district judge’s decision, the suppression
court’s duty is to ensure that there was “a substantial basis for concluding
that probable cause existed. In so doing, the reviewing court must accord
deference to the issuing authority's probable cause determination, and must
view the information offered to establish probable cause in a common-sense,
non-technical manner.” Harvard, supra at 697 (quoting Torres, supra at
538).
Detective Stephen Clark was the affiant for the warrants, which were
issued on May 17, 2012.
follows.
The affidavits contained the identical facts, as
Richard Margolis, Esquire, and Brett Murphy, Esquire, went to
Bensalem Township Police to report that they suspected that Appellant and
Mark Mangano were committing fraud.
Mr. Margolis said that he was the
trustee of a trust created by Theresa Blank for the benefit of her daughter,
Alicia, and that Theresa died on April 13, 2002.
Mr. Murphy was the
attorney for the trustee. The two attorneys reported that all of Mrs. Blank’s
assets had been placed in the trust and that, after Theresa’s death, Mark
Mangano and Appellant were the original trustees. On February 5, 2009, the
orphans’ court issued a final decree removing Appellant and Mangano as cotrustees and appointing Mr. Margolis as trustee.
On June 17, 2009,
Mr. Murphy sent Appellant a copy of the decree and asked that all
information about the location of any trust assets be given to Mr. Margolis.
Neither Appellant nor Mangano responded to that request. Additionally,
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13. Through Counsel, Petitioner discovered that the assets of
the Trust were previously held at Merrill Lynch under Account
Number 818-41835.
14. On March 6th, March 11th, and March 12th, of 2008, wire
transfers were made from the Merrill Lynch account to an
account at Citizens Bank, liquidating all assets from the Merrill
Lynch account in the amount of $405,061.03.
15. At least one portion of the Trust assets were being held at
Citizens Bank under Account Numbers 622140-355-7 (Business
Partners Checking 111 in Trust of Theresa Blank) and 622208185-5 (Premium Business Money Market in Trust of Theresa
Blank.[)]
16. On July 10th, 2009, less than one month after Counsel for
Petitioner sent notice of the February 5th, 2009 Decree to Gary
Blank and Mark Mangano, a withdrawal was made from the
Citizens Bank Trust Account in the amount of $230,000.00 by
Gary Blank and Mark Mangano.
17. This withdrawal was made despite Counsel for Petitioner’s
service of notice to Gary Blank and Mark Mangano of their
removal as Co-Trustees of the Trust.
18. As of August 5th, 2009, the total Trust assets remaining at
Citizens Bank were $11,618.75.
19. As of August 5th, 2009, the location of Trust Assets in the
amount of $393,442.28 is unknown to the current Trustee or his
Counsel.
20. On April 6th, 2010, Mark Mangano (removed Trustee)
advised Counsel Brett Murphy that approximately $160,000.00
of the said trust is in one or several accounts that are based at
the Wachovia Bank branch located in Bensalem Township.
(Account numbers unknown.)
Affidavits, 5/17/10, at 2.
This
affidavit
thus
established
the
following.
Appellant
and
Mr. Mangano had refused to provide information regarding trust assets to
the trustee of that trust and the trustee was unable to locate trust assets
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worth approximately $400,000.
Those assets originally were deposited at
Merrill Lynch, but were transferred to Citizens Bank where the balance was
depleted by approximately $170,000 in sixteen months.
Then, soon after
Appellant and Mangano were notified of their removal as trustees, they
depleted nearly the entire balance of the Citizens Bank trust account.
Mangano admitted that there were accounts containing trust money at
Wachovia Bank.
This affidavit clearly provided probable cause to believe that trust
assets were being stolen. The trustees would not provide any information
about the assets and expended $170,000 in sixteen months, which is
significantly more than the amount of money needed to support one child.
That money was depleted while it was located in Citizens Bank accounts.
Soon after removal and notice that they were not authorized to deal with
trust funds, Mr. Mangano and Appellant transferred the money from Citizens
Bank. Some trust assets were at Wachovia Bank. All of the information in
question
was
provided
by
virtually
unimpeachable
sources--named
attorneys, one of whom had been entrusted with overseeing the matter by
the orphans’ court. The information was within the personal knowledge of
the reporting individuals.
Hence, the facts were sufficient to warrant a
person of reasonable caution in the belief that Mr. Mangano and Appellant
had stolen trust money and evidence of that crime could be found in the
bank records of Citizens and Wachovia Banks.
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Appellant’s assertion that the affidavits failed to reveal that Appellant may
have committed a crime.
Judgment of sentence affirmed.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 3/18/2014
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