COMMONWEALTH OF PENNSYLVANIA v. ROBERT MILAZZO
No. 555 EDA 2015
No. 557 EDA 2015
IN THE SUPERIOR COURT OF PENNSYLVANIA
DECEMBER 21, 2015
BEFORE: DONOHUE, J., MUNDY, J., and MUSMANNO, J.
NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37; J-S63019-15 & J-S63020-15
Appellant, Robert Milazzo, appeals from the September 15, 2014 aggregate judgment of sentence of 36 to 72 months’ imprisonment imposed following his convictions for two counts each of insurance fraud, criminal conspiracy, and false reports and one count each of criminal use of
We summarize the relevant factual and procedural background of this case as follows. In October or November 2013, Appellant moved into 9493 Juniper Drive in Tobyhanna, Pennsylvania, the rented home of his cousin, Harley DiMartino, and Jennifer Sherwood, DiMartino‘s girlfriend. N.T., 7/8/14, at 109-110. On December 12, 2013, Appellant purchased a renter‘s insurance policy through American Strategic Insurance Corporation (ASI). Id. at 172-174. Sherwood and DiMartino left the home a day or two before Christmas to visit family over the holiday season. Id. at 111. Brenda Spagnola, a friend of Sherwood, agreed to take care of Sherwood‘s cats while the couple were away for the holidays. Id. at 35, 112. On December 27, 2013, Appellant spoke with Spagnola three times on the phone. Id. at 35. Appellant told Spagnola, during the second phone conversation, that there was a notice on the door of his residence to vacate the premises within ten days due to nonpayment of rent. Id. at 37. The third time Appellant called Spagnola, he directed her to feed and clean up after Sherwood‘s cats. Id. When Spagnola arrived to feed the cats that evening, between approximately 8:00 and 8:30 p.m., Appellant was there, and she noticed
Following this encounter, Spagnola called the police and informed them of the anticipated staged break-in. Id. at 45-48. At approximately 9:40 a.m., on December 28, 2013, Officer Scott Dunlap of the Pocono Mountain Regional Police Department received a dispatch directing him to Appellant‘s residence for a suspected burglary. Id. at 67. Appellant informed Officer Dunlap that he was out of the home from 9:00 p.m. the previous evening until 9:00 a.m. that day and that his tools and a large, flat-screen television were missing. Id. at 68, 76. That same day, Appellant called ASI to report the claim. Id. at 175. On January 3, 2014, Appellant went to the Pocono Mountain Regional Police Department seeking the police report in order to provide said report to ASI. Id. at 104-105. He informed Officer Mark Andersen that over $50,000.00 worth of home electronics and construction equipment were stolen. Id. at 107. Ultimately, he alleged to ASI that he lost in excess of $15,000.00 worth of property, but he could not provide proof of ownership. Id. at 184, 186. ASI denied Appellant‘s claim
On February 10, 2014, the Commonwealth filed an information charging Appellant with one count each of criminal use of communication facility, possession of an instrument of crime, criminal mischief, and intimidation of witnesses2 and two counts each of insurance fraud, conspiracy, false reports, and unsworn falsifications to authorities at docket number CP-45-CR-126-2014.
Subsequent to the filing of said charges against Appellant, he sent a letter to DiMartino directing him to notarize and send new statements recanting the statements he and Sherwood gave to police during the investigation and discouraging DiMartino from showing up for court. Id. at 209-215. He further advised DiMartino not to speak with Spagnola unless it was to convince Spagnola to refuse to appear in court to testify against him. Id. at 215. Appellant enclosed with the letter a proposed statement written from DiMartino‘s perspective which read, in part, “[i]n no way, shape, or form did we conspire with or agree to file any false reports to police with [Appellant] before or after the burglary took place.”3 Id. at 216. At
On July 8, 2014, Appellant stood trial on the charges at both docket numbers.5 On July 10, 2014, at the conclusion of the trial, the jury found Appellant guilty of two counts each of insurance fraud, criminal conspiracy, and false reports and one count each of criminal use of communication facility, unsworn falsification to authorities at docket number CP-45-CR-126-2014.6 At docket number CP-45-CR-975-2014, the jury found him guilty of obstruction of administration and not guilty on each count of intimidation of witnesses. On September 15, 2014, the trial court, by two separate orders, sentenced Appellant to an aggregate term of 36 to 72 months’
At 555 EDA 2015, Appellant raises the following issues for our consideration.
[1]. Did the trial court abuse its discretion by not to [sic] setting aside the verdict as to [c]riminal [u]se of [c]ommunication [f]acility in that there was insufficient evidence to convict Appellant of the crime, where the Commonwealth failed to show that [] Appellant either filed a claim, requested a claim to be filed, or was part of an agreement of a conspiracy?
[2]. Did the trial court abuse its discretion by not to [sic] setting aside the verdict as to [c]riminal [u]se of [c]ommunication [f]acility in that the verdict was against the weight of the evidence in that the Commonwealth failed to prove that [] Appellant either filed a claim, requested a claim to be filed, or was part of an agreement of a conspiracy?
[3]. Did the trial court abuse its discretion by not to [sic] setting aside the verdict as to [i]nsurance [f]raud, in that there was insufficient evidence to convict [A]ppellant of the crime, where the Commonwealth failed to show that [] Appellant either filed a claim, requested a claim to be filed, or was part of an agreement of a conspiracy?
[5]. Did the trial court abuse its discretion by not to [sic] setting aside the verdict as to [f]alse [r]eports, in that there was insufficient evidence to convict [A]ppellant of the crime, where the Commonwealth failed to show that [] Appellant either filed a claim, requested a claim to be filed, or was part of an agreement of a conspiracy?
[6]. Did the trial court abuse its discretion by not setting aside the verdict as to [c]onspiracy regarding [f]alse [r]eports to [l]aw [e]nforcement in that there was insufficient evidence to convict Appellant of the crime, where the Commonwealth failed to show that [] Appellant was part of an agreement of a conspiracy?
7. Did the trial court err when running Appellant‘s sentences concurrently for [f]alse [r]eport-[f]alsely [i]ncriminating [a]nother and [f]alse [r]eport when sentences should have merged?
Appellant‘s Brief (555 EDA 2015) at 5-6.
In Appellant‘s first four issues, he purports to challenge both the sufficiency and weight of the evidence supporting his convictions for criminal use of communication facility and insurance fraud. However, in each distinct argument section, he merely reproduces the identical argument. Therefore, we elect to address all four of these issues together. First, we address issues one and three to determine if the evidence was sufficient to support said convictions. We are bound by the following standard of review.
Commonwealth v. Young, 120 A.3d 299, 311 (Pa. Super. 2015) (citation omitted).
As noted, in issues one and three, Appellant argues there was insufficient evidence to convict him of insurance fraud and criminal use of communication facility. Appellant‘s Brief (555 EDA 2015) at 10, 16. The relevant statutes provide as follows.
§ 4117. Insurance fraud
(a) Offense defined.-- A person commits an offense if the person does any of the following:
...
(3) Knowingly and with the intent to defraud any insurer or self-insured, assists, abets, solicits or conspires with another to prepare or make any statement that is intended to be presented to any insurer or self-insured in connection with, or in support of, a claim that contains any false, incomplete or misleading information concerning any fact or thing material to the claim, including information which documents or supports an amount claimed in excess of the actual loss sustained by the claimant.
...
§ 7512. Criminal use of communication facility
(a) Offense defined.—A person commits a felony of the third degree if that person uses a communication facility to commit, cause or facilitate the commission or the attempt thereof of any crime which constitutes a felony under this title or under the act of April 14, 1972 (P.L. 233, No. 64), known as The Controlled Substance, Drug, Device and Cosmetic Act. Every instance where the communication facility is utilized constitutes a separate offense under this section.
...
(c) Definition. – As used in this section, the term “communication facility” means a public or private instrumentality used or useful in the transmission of
Specifically, Appellant argues that he merely “inquire[d] about reporting a claim[]” and “did not provide any paperwork requested by the [i]nsurance [c]ompany to open a claim.” Appellant‘s Brief (555 EDA 2015) at 10, 16. In essence, Appellant argues that because he never submitted formal paperwork in support of his claim of loss to ASI, he cannot be convicted of either offense.
First, we note there is nothing in Section 4117 that requires a claim to be submitted in writing in order to satisfy the elements of the crime.
[The Commonwealth]:
Q. Could you briefly explain what happens on an insurance claim when a claim is submitted against an insurance policy?
A. Yes. You have a loss, whether it be a fire, natural, catastrophic, whatever, you call it in. A customer service rep gets it, gets the information from you. It‘s assigned to a staff adjuster, and if it needs an independent adjuster, which means someone in the field, or if that particular company has someone that lives in the area, an adjuster will contact you, go over the particulars, come out and do an inspection, gather all the pertinent information, gather all the pertinent documents from you, and then the process will continue on where determination and coverage and verification is done, and then payments are issued accordingly.
N.T., 7/8/14, at 172-173. She further testified, “this claim was called in on 12/28/2013 at 11:54 a.m.” Id. at 175. She outlined her personal involvement with Appellant as follows.
[The Commonwealth]:
Q. Okay. And had you reviewed information [Appellant] provided with regard to the loss prior to speaking with him?
[Johns]:
A. Yes. I provided only what was called in to the customer service representative.
Q. And when you finally did speak with [Appellant], what did you say, and what did he say?
A. Introduced myself, let him know that I was working with the inside adjuster, requested to know what occurred in his own words.
Q. And what did he tell you?
A. He told me that he had roommates and that they were out of town and that he was away. He
talked about a girlfriend, and I asked if he was on the lease. And after several times requesting [he answer] that, he finally advised no. Then, he started talking about what items were taken, where these items were, where he was now having to stay because he had nowhere to stay. ...
A. And, as the conversation progressed, what did he say?
Q. He just wanted to know what he could do, how he could get paid, advised me that the claim rep had already advised him what needed to be done and that if he had any other questions to give me a call, but I needed the supporting documents.
...
Q. And do you know what amount he was claiming as lost or stolen or damaged?
A. During the course of several different conversations, an amount was given, yes.
Q. And what was that amount?
A. It was in excess of $15,000.[00.]
Id. at 184. Johns detailed further the items Appellant claimed were stolen and that Appellant was unable to furnish the required proof of ownership because “[h]e operates off the books.” Id. at 186.
Based on the foregoing, Appellant’s attempt to characterize his contact with ASI as “conversations about that policy” rather than as a claim is belied by the record. See Appellant’s Brief (555 EDA 2015) at 10, 16. There is ample evidence that Appellant had numerous discussions with
The trial court provided the following analysis as to weight of the evidence supporting the insurance fraud convictions.
Analyzing this motion under the weight of the evidence standard, [Appellant] again argues that he did not submit a proper claim. However, the testimony showed that he contacted the insurance company on the same morning he reported the burglary. His contact with them was to report his burglary claim. He made an initial contact to report his loss, and then followed up with Ms. Johns’ inquiries. She testified extensively about her investigation of [Appellant]’s claim and she referred to it as such. The jury was free to deem this testimony credible. The result was just, and it does not shock the court’s sense of justice.
Regarding Appellant’s criminal use of communication facility conviction, as with his sufficiency challenge, he does not contest that he used a telephone to have several conversations with ASI and send them images of his alleged damaged property. The trial court noted, “[b]oth the sufficiency of the evidence and weight of the evidence analyses detailed above [with respect to insurance fraud] apply here.” Id.
The trial court reviewed the evidence at trial and determined that the result does not shock one’s sense of justice, and we will not disturb its finding. See Weathers, supra. Moreover, it cannot be said that the trial court’s denial of Appellant’s post-sentence motions based on the facts and inferences of this case rises to a palpable abuse of discretion. See Morales, supra. Accordingly, Appellant’s challenges to his convictions for insurance fraud and criminal use of communication facility based on the weight of the evidence fail.15
§ 4906. False reports to law enforcement authorities
(a) Falsely incriminating another.—Except as provided in subsection (c), a person who knowingly gives false information to any law enforcement officer with intent to implicate another commits a misdemeanor of the second degree.
At trial, Officer Dunlap provided the following testimony.
[The Commonwealth]:
Q. And did [Appellant] make any statements to you – any further statements in regards to Ms. Sherwood and/or Mr. DiMartino?
A. Yes. He stated they still have a key. And as I said before, as I’m going around doing my investigation and talking to him at the same time, he tried to lead me to believe that maybe they were responsible for this. When I asked him why, he said [“]because they owe me money. They still got a key. You know, they could have done all this.[”]
N.T., 7/8/14, at 84.
Appellant argues that he “was answering the inquiry of the officer when [Appellant] was asked if he knew who may have done it, and he only responded that the person may have done it.” Appellant’s Brief (555 EDA 2015) at 23. Instantly, Appellant’s argument is untenable. Viewing the evidence in the light most favorable to the Commonwealth, the jury was free to credit the testimony of Officer Dunlap that Appellant indeed implicated his roommates in the crime. See Young, supra. Moreover, the overwhelming evidence presented at trial demonstrates that Appellant reported to police a burglary that did not occur. Therefore, the Commonwealth presented sufficient evidence to prove Appellant knowingly reported false information to police with the intent to implicate his roommates in the crime. See
Pennsylvania Rule of Appellate Procedure 2119 provides that the argument section in each brief shall contain “such discussion and citation of authorities as are deemed pertinent.” Pa.R.A.P. 2119(a). Because Appellant has failed to cite any case law or develop a factual argument in a substantive manner, Appellant has waived review of this issue. Delvalle, supra.
In Appellant’s final claim of error on docket 555 EDA 2015, he challenges the sentences imposed for his criminal conspiracy and false reports convictions.18 Appellant’s Brief (555 EDA 2015) at 25. Specifically,
The test for determining if crimes merge for sentencing follows.
§ 9765. Merger of sentences
No crimes shall merge for sentencing purposes unless the crimes arise from a single criminal act and all of the statutory elements of one offense are included in the statutory elements of the other offense. Where crimes merge for sentencing purposes, the court may sentence the defendant only on the higher graded offense.
Instantly, this Court has repeatedly held that “[t]he crime of conspiracy ... is separate and distinct from the underlying substantive crime.” Commonwealth v. Jacquez, 113 A.3d 834, 838 (Pa. Super. 2015) (citation omitted). Therefore, “the crime of conspiracy does not merge with the substantive offense that is the subject of the conspiracy.” Id. (citation omitted). Thus, the trial court did not err in sentencing Appellant on conspiracy and the underlying offense of false reports.
We turn now to assess Appellant’s claims that his convictions for false reports should have merged. As noted, Appellant was convicted of two counts of false reports: false reports-falsely incriminating another and false reports-fictitious reports. To convict Appellant of false reports-falsely incriminating another, the Commonwealth must prove that Appellant “knowingly g[ave] false information to any law enforcement officer with intent to implicate another[.]”
We now turn our attention to Appellant’s claims of error on docket number 557 EDA 2015. Appellant asks us to consider the following three issues.
1. Did the trial court abuse its discretion by not setting aside the verdict for the charge of [o]bstructing [a]dministration of [l]aw or [o]ther [g]overnmental [f]unction where there was no conviction for an unlawful act[,] where [A]ppellant was acquitted of the other charges in the criminal information upon which the obstructing administration of law or other governmental function charge was based?
2. Did the trial court abuse its discretion when it did not to [sic] set aside the verdict as to [o]bstructing [a]dministration of [l]aw or [o]ther [g]overnmental [f]unction, where there was insufficient evidence to convict [Appellant] of the crime, when an element of the crime was not met?
Appellant’s Brief (557 EDA 2015) at 5.
While purporting to raise three, distinct issues, Appellant advances only one argument. Appellant argues that “there is no unlawful act[,]” and therefore, the Commonwealth failed to prove an element of obstructing administration of law or other governmental function. Appellant’s Brief (557 EDA 2015) at 9. Accordingly, Appellant maintains there was insufficient evidence of the crime and that the verdict was against the weight of the evidence. We first review Appellant’s conviction for sufficiency, mindful of our standard of review. See Young, supra. The elements of the offense follow.
§ 5101. Obstructing administration of law or other governmental function
A person commits a misdemeanor of the second degree if he intentionally obstructs, impairs or perverts the administration of law or other governmental function by force, violence, physical interference or obstacle, breach of official duty, or any other unlawful act except that this section does not apply to flight by a person charged with a crime, refusal to submit to arrest, failure to perform a legal duty other than an official duty, or any other means of avoiding compliance with law without affirmative interference with governmental functions.
As explained, Appellant sent DiMartino a letter from prison telling DiMartino that the police cannot force DiMartino, Sherwood, or Spagnola to appear for court to testify.19 N.T., 7/8/14 at 210-211. He wrote to DiMartino, “[y]ou need to recant on those statements. Write new ones[.] ... I need a statement from you and [Sherwood]... You need to say you don’t know what happened there and that [Appellant] had tools there.” Id. at 211-212. The letter also suggested DiMartino refuse to testify. Specifically, Appellant wrote, “[t]he best thing after these statements is no one show up for court. Remember you can’t get in trouble. They only scare people into doing that. Give me your number so we can talk further. Don’t talk to [Spagnola] unless convincing her not to show up at court.” Id. at 215
Here, the statute in question does not require a conviction of any specific crime, only that [Appellant] impair administration of law through some “unlawful act.” [Appellant] staged a burglary in order to collect renter’s insurance, and he encouraged his roommates, [] DiMartino and [] Sherwood to participate in the plan. He reported the false burglary to the police and to his insurance company, made false written statements, and encouraged his roommates to provide false statements as well. While [Appellant] was acquitted of two counts of [i]ntimidation of [w]itnesses, ... the jury was instructed that [o]bstruction could be proven if [Appellant] directed a witness, Harley DiMartino, to provide a false statement to police with intent of obstructing justice. It is not a statutory requirement that he be convicted or any other for the [o]bstruction conviction to stand. The jury had ample evidence to find [Appellant] directed [] DiMartino to provide a false statement in order to obstruct [Appellant]’s prosecution for committing insurance fraud.
Trial Court Opinion, 1/29/15, at 7-8 (internal citation omitted, italics in original).
We agree with the trial court that, viewing all the evidence at trial in the light most favorable to the Commonwealth, sufficient evidence was produced to enable the jury to find that Appellant was guilty of obstructing the administration of justice. See Young, supra. Furthermore, the fact that DiMartino testified against Appellant is of no consequence to the charge because “section 5101 includes intentional, albeit unsuccessful attempts to influence, obstruct, or delay the administration of law.” Commonwealth v. Snyder, 60 A.3d 165, 177 (Pa. Super, 2013) (citation omitted), appeal denied, 70 A.3d 811 (Pa. 2013). The evidence adduced at trial indisputably demonstrates Appellant intentionally undertook to have DiMartino and Sherwood provide false statements to police and to refuse to testify against him in order to obstruct or delay the administration of law. Accordingly, Appellant’s first two issues fail.
Similarly, in Appellant’s third issue, he argues, “there is no evidence of an unlawful act, therefore the verdict is a shock to one’s conscience.” Appellant’s Brief (557 EDA 2015) at 15. The trial court evaluated the evidence at trial and concluded, “[t]he weight of the evidence also supported [Appellant’s] conviction.” Trial Court Opinion, 1/29/15, at 7-8. Our review reveals that the trial court properly exercised its discretion in determining the conviction was not against the weight of the evidence, and we will not upset the trial court’s determination. See Weathers, supra; Morales, supra.
Based on the foregoing discussion, we conclude all of Appellant’s issues are either without merit or waived. Accordingly, we affirm the trial court’s September 15, 2014 judgments of sentence.
Judgment of sentence affirmed.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 12/21/2015