J-S63029-15

NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA IN THE SUPERIOR COURT OF

PENNSYLVANIA

Appellee

v.

EDWARD HUMPHREY

Appellant No. 1661 EDA 2015

Appeal from the Judgment of Sentence February 7, 2014

In the Court of Common Pleas of Northampton County

Criminal Division at No(s): CP-48-CR-0002906-2013

BEFORE: DONOHUE, J., MUNDY, J., and MUSMANNO, J.

MEMORANDUM BY MUNDY, J.: FILED NOVEMBER 06, 2015

Appellant, Edward Humphrey, appeals from the February 7, 2014 

aggregate judgment of sentence of 32 to 64 months of incarceration, 

followed by four years of probation, after a jury convicted him of home 

improvement fraud and theft by deception.1 After careful review, we affirm.

Appellant’s two-day jury trial commenced on January 6, 2014. Mr. 

Leeander Gray testified that on July 8, 2011, he entered into a contract with 

Appellant for home repairs, including a new roof, in the amount of 

$32,000.00. N.T., 1/6-7/14, at 15-18. Appellant advised Mr. Gray that the 

home repairs could be completed in seven to ten days. Id. at 20. Mr. Gray 

____________________________________________

1 73 P.S. § 517.8(a)(2) and 18 Pa.C.S.A. § 3922(a)(1), respectively.
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gave Appellant $15,000.00, payable to Total Remodeling, toward the down 

payment. Id. at 22. On July 19, 2011, Mr. Gray’s wife wrote a check for an 

additional $10,000.00 to Total Remodeling, and gave the check to Appellant. 

Id. at 25-26. Within a week, Appellant began demolition at the Grays’ 

home. Id. On August 18, 2011, at Appellant’s request, the Grays paid 

Appellant an additional $9,842.93, for a total of $34,842.93. Id. at 28-30. 

Thereafter, Appellant ceased work on the Grays’ home. Mr. Gray testified, 

“It was basically we still had a shell of the home, the electrical wasn’t done 

yet, the drywall needed to be hung, the carpets needed to be put back down 

and the painting.” Id. at 31. Although Mr. Gray tried repeatedly to contact 

Appellant, he could not reach him and “gave up.” Id. Appellant never 

returned to complete the work on the Grays’ home, nor did he remit a 

refund to the Grays. Id. at 33, 39, 68. Mr. Gray had to hire another 

contractor to complete the construction. Id. at 44. Consequently, Mr. Gray 

contacted the police. Id. at 39. 

Mr. James Reilly testified to “meeting up” with Appellant in January or 

February of 2011. Id. at 74-75. Appellant told Mr. Reilly that he could 

teach him how to start a windows, roofing and siding business. Id. at 76. 

At Appellant’s suggestion, Mr. Reilly started a company on March 15, 2011, 

in Mr. Reilly’s name, but “set up” by Appellant. Id. at 81-83. The name of 

the company was Total Remodeling of Northeast Pennsylvania. Id. at 84. 

Mr. Reilly explained that Appellant was “running the whole company,” and 
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Mr. Reilly was trying to learn from Appellant. Id. at 86-87, 91-92. Mr. 

Reilly testified as follows.

[T]here was – there came a point where [Appellant] 

wasn’t showing up. He was disappearing for days 

and God knows what he was doing but then, you

know, he just come back [sic] in like, you know, 

save the day like everything is fine. And everything 

wasn’t fine because, you know, people were looking 

for him and, you know, I didn’t know what to help 

[sic], to say to people and what was going on so—

Id. at 89. Mr. Reilly asked Appellant to remove Mr. Reilly’s name from the 

Total Remodeling company and Appellant did so on June 20, 2011. Id. at 

92. 

Ms. Jennifer Tillema testified to answering Appellant’s Craigslist ad for 

secretarial employment in May of 2011. Id. at 128-130. Ms. Tillema began 

working for Appellant and, within a few months, Appellant discussed with 

Ms. Tillema “becoming an owner or member in the company.” Id. at 132. 

The discussion occurred “towards the end when Mr. Reilly was not around 

and we were trying to figure out if we could move forward and try to 

complete the work.” Id. at 133. On August 2, 2011, Ms. Tillema 

accompanied Appellant to the bank to open an account for the company. 

Id. at 137-137. At Appellant’s direction, the bank account was opened in 

Ms. Tillema’s name, with Appellant as a “signer.” Id. at 139, 152. By the 

end of August, Ms. Tillema had “very limited access” to Appellant and “just 

couldn’t get ahold of him regularly.” Id. at 141-142. Ms. Tillema began to 

conduct “due diligence” and went to the Grays’ home, where she “didn’t 
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even have to go into the home” to see that it was in poor condition. Id. at 

142-143. At this point, Total Remodeling had “no money” to return to the 

Grays, and Ms. Tillema left the Grays’ home “very upset.” Id. at 144. She 

testified, “[t]heir home was destroyed.” Id. at 154.

Pennsylvania State Trooper Michael Hodgskin testified to investigating 

the Grays’ report of fraud. After hearing from Mr. Gray at the police 

barracks, Trooper Hodgskin went to the Grays’ home, where he “observed 

the entire second floor basically just [un]inhabitable. It was basically under 

construction, framing, partial roof, no insulation, exposed wiring.” Id. at 

160. Trooper Hodgskin opined that “there was definitely something very 

wrong ... [t]his was not just a bad business transaction, this was beyond just 

shoddy work ... I didn’t think that they could live there. I thought it was 

uninhabitable. I don’t know how they were staying there, to be honest.” 

Id. at 161. Trooper Hodgskin attempted to make contact with Appellant 

“with no avail.” Id. at 163. Based on this investigation, a criminal 

complaint was filed against Appellant.

The Commonwealth then introduced the testimony of two individuals 

who had prior dealings with Appellant: Mrs. Vernita Gilliam and Mr. Michael 

McLoughlin.

Mrs. Gilliam testified to being a longtime resident of Colorado. Id. at 

181. In June 2010, she and her husband hired Appellant, who said he was 

the owner of “Total Remodeling of Lakewood, Colorado” to paint their home. 
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Id. at 182. After Appellant completed the job, the Gilliams hired Appellant 

to finish their basement, add a sun porch and complete a patio. Id. at 183-

184. On June 29, 2010, the Gilliams executed a written contract with 

Appellant and Total Remodeling for the work and remitted a $25,000.00 

down payment. Id. at 188-191. Appellant began the project in early 

September 2010, after which Appellant requested an additional $24,183.50. 

Id. at 193. Although the Gilliams paid Appellant a total of $49,183.50, the 

work was never completed. Id. at 194. Mrs. Gilliam tried to contact 

Appellant by email and telephone with no success. Id. Appellant’s workers 

completed demolition but never began construction. Id. at 195, 200. The 

Gilliams never received a refund and had to hire another contractor to finish 

the work. Id. at 197. 

Mr. Michael McLoughlin testified to contacting Appellant and Total 

Remodeling of Northeast Pennsylvania to complete a “flashing job.” Id. at 

206. According to Mr. McLoughlin, Appellant “walked around [the home] 

and came back with other problems that he saw that should be rectified.” 

Id. at 207. Appellant suggested repairs to Mr. McLoughlin’s deck, cellar, 

and home exterior. Id. at 208. Mr. McLoughlin executed a contract with 

Appellant on May 12, 2011. Id. at 210. Mr. McLoughlin gave Appellant his 

credit card information for payment. Id. at 212. Afterwards, the work 

“sped up and slowed down,” but was never completed, and Mr. McLoughlin 

had to hire another contractor to complete the work. Id. at 213-216. 
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Nonetheless, Appellant charged a total of $105,000.00 to Mr. McLoughlin’s 

credit card. Id. at 216. Mr. McLoughlin never received a refund. Id. at 

217.

Based on the above evidence, the jury found Appellant guilty of home 

improvement fraud and theft by deception. On February 7, 2014, the trial 

court sentenced Appellant to consecutive terms of 16 to 32 months of 

incarceration on each conviction, followed by four years of probation.

The trial court summarized a portion of the somewhat convoluted 

procedural history that ensued as follows.

On February 11, 2014, [Appellant] filed a pro 

se Notice of Appeal. On February 12, 2014, 

[Appellant’s] Trial Counsel, Joseph Yannuzzi, Esquire, 

filed a Petition for Reconsideration of Sentence. 

Attorney Yannuzzi subsequently withdrew from the 

case and [Appellant] was appointed Attorney Robert 

Sletvold, Esquire, to represent him. On February 17, 

2014, Attorney Sletvold filed Post-Sentence Motions

on behalf of [Appellant] including a Motion for Arrest 

of Judgment, Motion for Judgment of Acquittal, 

Motion for a New Trial and Motion to 

Modify/Reconsider Sentence. On March 3, 2014, 

[Appellant] filed a Motion for Post-Conviction 

Collateral Relief. This Court scheduled a hearing for 

April 3, 2014 to address the pending motions, the 

Notice of Appeal and the Motion for Post-Conviction 

Collateral Relief. At the hearing, Attorney Sletvold 

represented to this Court that the motion filed by 

Attorney Yannuzzi was filed to preserve [Appellant’s] 

appellate rights before he withdrew his appearance 

and Attorney Sletvold was appointed. Attorney 

Sletvold agreed to withdraw the pending Appeal and 

asked this Court to proceed with Post-Sentence 

Motions. [Appellant’s initial appeal was discontinued 

by the Superior Court of Pennsylvania on April 28, 

2014 at Appellant’s request.]
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Trial Court Opinion and Order, 6/3/14, at 1-2.

The trial court denied Appellant’s post-sentence motions on June 3, 

2014. Appellant filed a timely notice of appeal on July 2, 2014. Both the 

trial court and Appellant complied with Pennsylvania Rule of Appellate 

Procedure 1925, with the trial court on August 14, 2014 filing its Rule 

1925(a) statement, in which it adopted and incorporated its opinion and 

order dated June 3, 2014.

Appellant explained that his second appeal was delayed as follows.

After being granted two extensions of time to 

file [Appellant’s] brief on appeal, Attorney Sletvold 

failed to file a timely brief, and the Superior Court 

dismissed the appeal by Order of Court dated March 

9, 2015.

On March 1[8], 2015, [Appellant] filed a new 

PCRA Petition based on prior counsel’s failure to 

timely file a brief in his appeal. Attorney James 

Brose was appointed to represent [Appellant].

Appellant’s Brief at 7.

On May 19, 2015, the trial court issued an order granting Appellant 

permission to appeal nunc pro tunc. Appellant filed the within appeal on 

June 2, 2015. The parties again have complied with Rule 1925. On June 

26, 2015, the trial court filed a Rule 1925(a) statement in which it reiterated 

its adoption of its opinion and order dated June 3, 2014.

On appeal, Appellant presents a single issue for our review.

1. Did the [trial c]ourt abuse its discretion by 

permitting the testimony, under Pa. Rule of Evidence 
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404(b), of two witnesses who claimed to have had 

similar experiences with the [A]ppellant as the 

complainant in this case?

Id. at 4.

We begin by noting our well-settled standard of review regarding 

evidentiary issues. 

The admissibility of evidence is at the discretion of 

the trial court and only a showing of an abuse of that 

discretion, and resulting prejudice, constitutes 

reversible error. An abuse of discretion is not merely 

an error of judgment, but is rather the overriding or 

misapplication of the law, or the exercise of 

judgment that is manifestly unreasonable, or the 

result of bias, prejudice, ill-will or partiality, as 

shown by the evidence of record. Furthermore, if in 

reaching a conclusion the trial court over-rides or 

misapplies the law, discretion is then abused and it is 

the duty of the appellate court to correct the error.

Commonwealth v. Fischere, 70 A.3d 1270, 1275 (Pa. Super. 2013) (en 

banc) (internal quotation marks and citations omitted), appeal denied, 83 

A.3d 167 (Pa. 2013).

Instantly, on December 23, 2013, the Commonwealth filed notice 

pursuant to Pennsylvania Rule of Evidence 404(b), in which it stated that it 

intended to “introduce evidence at trial consisting of evidence of other 

crimes, wrongs or acts” of Appellant, and that such evidence would “be 

offered as proof of motive, opportunity, intent, preparation, plan, 

knowledge, identity, absence of mistake or accident or as otherwise 

relevant.” Notice Pursuant to Pennsylvania Rule of Evidence 404(b), 

12/23/14.
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This Court recently detailed our analysis under Rule 404(b) as follows.

Rule 404. Character Evidence; Crimes or Other 

Acts

* * *

(b) Crimes, Wrongs or Other Acts.

(1) Prohibited Uses. Evidence of a crime, wrong, or 

other act is not admissible to prove a person’s 

character in order to show that on a particular 

occasion the person acted in accordance with the 

character.

(2) Permitted Uses. This evidence may be 

admissible for another purpose, such as proving 

motive, opportunity, intent, preparation, plan, 

knowledge, identity, absence of mistake, or lack of 

accident. In a criminal case this evidence is 

admissible only if the probative value of the evidence 

outweighs its potential for unfair prejudice.

* * *

Pa.R.E. 404(b)(1)-(2). “[E]vidence of prior crimes is 

not admissible for the sole purpose of demonstrating 

a criminal defendant’s propensity to commit crimes.” 

Commonwealth v. Melendez–Rodriguez, 856 

A.2d 1278, 1283 (Pa. Super. 2004). Nevertheless, 

“[e]vidence may be admissible in certain 

circumstances where it is relevant for some other 

legitimate purpose and not utilized solely to blacken 

the defendant’s character.” Id. Specifically, other 

crimes evidence is admissible if offered for a nonpropensity purpose, such as proof of an actor’s 

knowledge, plan, motive, identity, or absence of 

mistake or accident. Commonwealth v. Chmiel,

585 Pa. 547, 889 A.2d 501 (2005). When offered for 

a legitimate purpose, evidence of prior crimes is 

admissible if its probative value outweighs its 

potential for unfair prejudice. Commonwealth v. 

Hairston, 624 Pa. 143, 84 A.3d 657 (2014), cert. 
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denied, ––– U.S. ––––, 135 S.Ct. 164, 190 L.Ed.2d 

118 (2014).

When ruling upon the admissibility of evidence 

under the common plan exception, the trial 

court must first examine the details and 

surrounding circumstances of each criminal 

incident to assure that the evidence reveals 

criminal conduct which is distinctive and so 

nearly identical as to become the signature of 

the same perpetrator. Relevant to such a 

finding will be the habits or patterns of action 

or conduct undertaken by the perpetrator to 

commit crime, as well as the time, place, and 

types of victims typically chosen by the 

perpetrator. Given this initial determination, 

the court is bound to engage in a careful 

balancing test to assure that the common plan 

evidence is not too remote in time to be 

probative. If the evidence reveals that the 

details of each criminal incident are nearly 

identical, the fact that the incidents are 

separated by a lapse of time will not likely 

prevent the offer of the evidence unless the 

time lapse is excessive. Finally, the trial court 

must assure that the probative value of the 

evidence is not outweighed by its potential 

prejudicial impact upon the trier of fact. To do 

so, the court must balance the potential 

prejudicial impact of the evidence with such 

factors as the degree of similarity established 

between the incidents of criminal conduct, the 

Commonwealth’s need to present evidence 

under the common plan exception, and the 

ability of the trial court to caution the jury 

concerning the proper use of such evidence by 

them in their deliberations.

Commonwealth v. G.D.M., Sr., 926 A.2d 984, 987 

(Pa. Super. 2007), appeal denied, 596 Pa. 715, 944 

A.2d 756 (2008) (quoting Commonwealth v. 

Smith, 431 Pa. Super. 91, 635 A.2d 1086, 1089 

(1993)).
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Commonwealth v. Tyson, 119 A.3d 353, 358-359 (Pa. Super. 2015) (en 

banc). 

We note for purposes of our analysis that Pennsylvania Rule of 

Evidence 404(b), permitting the admission of evidence of prior bad acts for 

limited purposes, is not restricted to evidence of crimes that have been 

proven beyond a reasonable doubt in court; it encompasses both prior 

crimes and prior wrongs and acts, the latter of which, by their nature, often 

lack definitive proof. Commonwealth v. Lockcuff, 813 A.2d 857 (Pa. 

Super. 2002), appeal denied, 825 A.2d 638 (Pa. 2003). 

In this case, Appellant asserts that the trial court abused its discretion 

when it admitted evidence “of two prior customers of [Appellant] because 

they told a similar story to the victim in this case.” Appellant’s Brief at 12. 

Appellant maintains that “there are likely hundreds, if not thousands, of 

home contractor disputes with the same similarities ....” Id. at 15. 

Appellant states as follows.

The “similarities” among the witnesses’ situations 

and the victim’s in this case are so general that they 

could be applied to almost every homeowner/home 

contractor dispute. There is nothing distinctive 

about them and nothing that shows a “signature” of 

[Appellant]. Moreover, one of the three disputes 

arose in Colorado so the events cannot be said to be 

similar geographically and the fact that the disputes 

occurred over 2 years does not show a common 

pattern or scheme even though the Trial Court held 

as much.

Id. 
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Significantly, in the argument section of his brief, Appellant fails to cite 

to the notes of testimony or otherwise detail his contention that the 

admitted evidence was not admissible under Pennsylvania Rule of Evidence 

404(b). The Commonwealth, on the other hand, specifically counters as 

follows.

The evidence and testimony of both Mrs. 

Gilliam and Mr. McLoughlin establishes a common 

scheme used by Appellant when he contracted with 

the Grays. The name of the companies and the 

contracts used by Appellant were similar to the 

contract with the Grays. Additionally, Appellant 

convinced the homeowners to contract with him on 

additional remodeling around their homes, which 

Appellant knew he was not capable of completing. 

Each house was left in a state of disrepair only after 

a small amount of work was done, and none of the 

parties were able to get in contact with Appellant. 

Nevertheless, Appellant took money from Mr. 

McLoughlin, the Gilliams, and the Grays in the full 

amount of the contracts or greater, never completed 

the remodeling contracts, and never returned money 

for incomplete work. At the time Appellant 

contracted with the Grays he had the intent to take 

their money, but had no intention of ever completing 

the remodeling work. Because similar situations had 

occurred with Mrs. Gilliam and Mr. McLoughlin, this 

evidence was properly admitted at trial to show 

intent, common scheme or plan, and the absence of 

mistake or accident.

Commonwealth Brief at 17-18.

We agree with the Commonwealth. Likewise, the trial court concluded 

that the Commonwealth’s evidence of Appellant’s prior bad acts was relevant 

and offered the following detailed reasoning.
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This Court properly allowed evidence of 

[Appellant’s] prior bad acts through the testimony of 

Gilliam and McLoughlin. There was credible evidence 

presented at trial of [Appellant’s] prior dealings with 

customers who contracted with him for home repairs 

and paid [Appellant] large sums of money only to 

have [Appellant] start but never finish the work. [] 

Gilliam testified at trial that she entered into a 

contract with [Appellant] in 2010 to make repairs to 

her home in Colorado. Gilliam testified that at 

[Appellant’s] request, she paid twenty-five thousand 

dollars ($25,000.00) on July 21, 2010 and an 

additional twenty-four thousand one hundred eightythree dollars and fifty cents ($24,183.50). The work 

was started but never completed at her home and 

her home was left in disrepair, forcing her to hire 

and pay another contractor to re-do the work.

McLoughlin testified that he entered into a 

contract with [Appellant] in 2011 to make repairs to 

his home in Pennsylvania. McLoughlin testified he 

gave [Appellant] two credit card numbers to make 

charges when necessary with the amount charged to 

McLoughlin’s credit cards totaling one hundred and 

five thousand dollars ($105,000.00). Further, 

McLoughlin testified the work was started but was 

never completed. McLoughlin’s money was never 

returned to him and he had to hire someone else to 

fix and finish the repairs.

The credible evidence presented by Gilliam and 

McLoughlin tended to demonstrate a common plan or 

scheme by [Appellant] to defraud homeowners. The 

prior bad acts occurred within two (2) years of the 

crimes committed in the instant case and the 

similarities were apparent. Therefore, [Appellant’s] 

prior bad acts were properly admitted into evidence 

through Gilliam and McLoughlin’s testimony. The 

probative value of this evidence was not outweighed 

by unfair prejudice. The jury was given the following

instruction regarding the prior bad act evidence:

Ladies and gentlemen of the jury, you heard 

evidence tending to prove the defendant 
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committed some improper conduct for which 

he is not on trial. I’m speaking of the 

testimony of this last witness. This evidence 

was before you for a limited purpose, tending 

to show the absence of mistake, strategic 

planning, knowledge, opportunity or 

preparation. This evidence is not to be 

considered by you in any other way other than 

for the purpose I just stated. You must not 

regard this evidence as showing this defendant 

is a person of bad character or criminal 

tendencies from which you may be inclined to 

infer guilt ... that same instruction applies to 

the next witness, also.

(N.T., 1/7/14, pg. 204). 

All three victims contacted [Appellant] for home 

improvement repairs. They each entered into a 

contract with [Appellant’s] company through 

[Appellant]. In each instance, [Appellant] 

represented himself as the owner of the company 

and directed the victims to remit payment to him. 

[Appellant] asked each victim for additional payment 

once the job was started, which each victim paid. 

[Appellant] began the work in each case, but did not 

complete it and did not return any money to any of 

the victims. The prior bad acts and the instant 

charges against [Appellant] were so similar in 

nature; this Court properly admitted this evidence. 

Moreover, any prejudice that could have resulted 

from the admission of the prior bad acts was cured 

by the limiting instruction given by the Court. 

Trial Court Opinion, 6/3/14, at 11-13 (internal citations omitted).

The trial court’s reasoning is consistent with both the certified record 

and applicable legal authority. We thus conclude the trial court did not 

abuse its discretion in permitting the testimony of Mrs. Gilliam and Mr. 
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McLoughlin. See Fischere, supra.

2

 Accordingly, we affirm Appellant’s 

judgment of sentence.

Judgment of sentence affirmed.

Judgment Entered.

Joseph D. Seletyn, Esq.

Prothonotary

Date: 11/6/2015

____________________________________________

2 To the extent Appellant argues that the Commonwealth’s evidence should 

not have been admitted under Rule 403 because its prejudicial effect 

outweighed its probative value, we reject that argument as well. Generally, 

Rule 403 will exclude otherwise admissible evidence where the “probative 

value is outweighed by a danger of one or more of the following: unfair 

prejudice, confusing the issues, misleading the jury, undue delay, wasting 

time, or needlessly presenting cumulative evidence.” Pa.R.E. 403. As noted 

by both the parties and the trial court in this case, the jury was provided 

with a curative instruction relative to Mrs. Gilliam and Mr. McLoughlin’s 

testimony.