Commonwealth v. Hill
140 A.3d 713
| Pa. Super. Ct. | 2016Background
- Homeowners Carmen and Alexis Rodriguez hired Eric Christopher Hill after receiving a flyer to finish their basement and add a bathroom; Hill gave a $7,900 estimate and took a $3,950 deposit.
- Hill began minimal work (some cement chipping), then claimed permit problems; homeowners discovered no permits had been pulled and the signed contract disappeared.
- Hill stopped communicating, failed to refund the deposit, and his phone was later disconnected; he was arrested and charged with theft by unlawful taking, deceptive or fraudulent business practices, and home improvement fraud.
- A jury convicted Hill of all three offenses; the trial court sentenced him to three consecutive 1–5 year terms (aggregate 3–15 years).
- On appeal Hill argued the offenses should have merged for sentencing because their elements overlapped; the trial court had also recognized merger error as to two counts.
- The Superior Court affirmed that theft did not merge with the other offenses but held deceptive business practices and home improvement fraud do merge; it vacated the sentence and remanded for resentencing.
Issues
| Issue | Hill’s Argument | Commonwealth’s Argument | Held |
|---|---|---|---|
| Whether theft (§3921) merges with deceptive business practices (§4107) and home improvement fraud (73 P.S. §517.8) for sentencing | The mens rea (intent to deprive) required for theft is implicitly required by the other statutes, so theft’s elements are subsumed and should merge | The other statutes require elements theft does not (e.g., course of business; failure to perform services), so theft is not a lesser-included offense | Not merged: theft does not merge because it requires unlawful control of movable property, an element the others lack |
| Whether deceptive or fraudulent business practices merges with home improvement fraud | The conduct required (delivering less than represented / failing to perform services after advance payment) is effectively identical; home improvement fraud adds only the home-improvement context, so they merge | (Implicit) Home improvement fraud contains an additional element (advance payment and failure to return payment), so one is a greater offense | Merged: deceptive business practices is subsumed by home improvement fraud; convictions should have merged and court remanded for resentencing |
Key Cases Cited
- Commonwealth v. Nero, 58 A.3d 802 (Pa. Super. 2012) (describes test for merger by comparing statutory elements)
- Commonwealth v. Eline, 940 A.2d 421 (Pa. Super. 2007) (fraudulent intent is an element of deceptive business practices)
- Commonwealth v. Goins, 867 A.2d 526 (Pa. Super. 2004) (higher culpability does not necessarily mean different elements for merger analysis)
- Commonwealth v. Quintua, 56 A.3d 399 (Pa. Super. 2012) (sentence legality review is de novo)
- Commonwealth v. Barton-Martin, 5 A.3d 363 (Pa. Super. 2010) (vacating one sentence that disrupts the overall sentencing scheme warrants remand for resentencing)