J-A11007-14

NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O. P. 65.37 COMMONWEALTH OF PENNSYLVANIA IN THE SUPERIOR COURT OF PENNSYLVANIA Appellee

v.

DAVID L. PATTON Appellant No. 1973 WDA 2012

Appeal from the Judgment of Sentence of November 6, 2012 In the Court of Common Pleas of Clarion County Criminal Division at No(s): 543 CR 2010

COMMONWEALTH OF PENNSYLVANIA, IN THE SUPERIOR COURT OF PENNSYLVANIA Appellee

v. DAVID L. PATTON, Appellant No. 1974 WDA 2012

Appeal from the Judgment of Sentence of November 6, 2012 In the Court of Common Pleas of Clarion County Criminal Division at No(s): 543 CR 2010, 148 CR 2011 BEFORE: GANTMAN, P.J., FORD ELLIOTT, P.J.E. and OLS ON, J. MEMORANDUM BY OLSON, J.: FILED SEPTEMBER 19, 2014 Appellant, David L. Patton, appeals from the judgmen t of sentence entered on November 6, 2012. We affirm. In 2010, Appellant was arrested and charged with over 100 counts of theft. The Commonwealth premised all of the theft co unts upon the allegation that Appellant had abused a general durab le power of attorney,J-A11007-14

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which named him the agent for his 86-year-old aunt, B etty Wetzel. Specifically, the Commonwealth alleged, Appellant had abused the power of attorney by stealing over $200,000.00 from Ms. Wetzel ’s accounts and using the money for Appellant’s own benefit. 1 The general durable power of attorney at issue here w as executed on January 11, 2007, in Venango County, Pennsylvania, a nd provided, in relevant part:

NOTICE

The purpose of this power of attorney is to give the person you designate (your “agent”) broad powers to handle y our property, which may include powers to sell or otherwise dispose of any real or personal property without advan ce notice to you or approval by you. This power of attorney does not impose a duty on your agent to exercise granted powers, but when powers are exercised, your agent must use due care to act for your benefit and in accordance with this power of attorney. Your agent may exercise the powers given here througho ut your lifetime, even after you become incapacitated, u nless

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1 We note that on February 11, 2011, the Commonwealt h filed a second information against Appellant, wherein the Commonwe alth charged Appellant with additional theft counts. However, as w as true with the earlier information, the theft counts in the second informatio n were based upon the allegation that Appellant had abused the power of at torney over Ms. Wetzel. Therefore, the trial court consolidated the two cases by order entered May 2, 2011. Trial Court Order, 5/2/11, at 1. For ease of discussion, we will omit any reference to either the pre-trial proceedings or t he pre-trial motions at the second case number.J-A11007-14

- 3 - you expressly limit the duration of these powers or you revoke these powers or a court acting on your behalf terminates your agent’s authority. Your agent must keep your funds separate from your agent’s funds. A court can take away the powers of your agent if it f inds your agent is not acting properly. The powers and duties of an agent under a power of attorney are explained more fully in 20 Pa.C.S. Ch. 56. If there is anything about this form that you do not understand, you should ask a lawyer of your own choosing to explain it to you. I have read or had explained to me this notice and I understand its contents. (signature)________________ Betty M. Wetzel, Principal

REVOCATION AND APPOINTMENT OF POWER OF ATTORNEY KNOW ALL MEN BY THESE PRESENTS, that I, Betty M. Wetzel . . . do hereby . . . make, constitute and app oint [Appellant] . . . my true and lawful agent, for me and in my name and on my behalf. To draw checks against my account in any bank, trust company or savings and loan association in which I have any monies deposited, for all or any part of the mone y now or hereafter deposited in said bank, trust company or savings and loan association, or which may stand to my credit on the books thereof; to endorse notes, checks, drafts, and bills of exchange, including, but not limi ted to, checks of the United States Government, the Department of Health and Welfare of the United States, and any chec k payable to me issued by the Commonwealth of Pennsylvania, which may require my endorsement for th eJ-A11007-14

- 4 - deposit as cash, or for collection in any bank in which I may have money deposited;

. . . To pay, compromise and settle all debts which I may owe or which I may hereafter contract; To make such contracts as may be necessary for my maintenance and support, and to employ such persons as nurses, housekeepers or for such other purposes as may be necessary to care for me and to provide for my needs, medical care and welfare, and to do all other things necessary or required to look after and care for me, an d to pay out of my funds and estate all debts, accounts and expenses which may be contracted in providing for my needs, comfort, health and welfare;

. . . To execute and otherwise deliver any beneficiary statem ent or change of beneficiary form associated with any policy of insurance pension plan or employee benefit or savings p lan of any type;

. . . To transact all business and to do, execute and perform a ll things in my behalf as fully, largely and amply to al l intents and purposes as I myself might or could do if personally present. . . .

. . . To the extent that the following powers may not expl icitly be set forth hereinabove, I further hereby grant to my said agent the following powers: (1) To make limited or unlimited gifts.

. . . (14) To engage in banking and financial transactions.J-A11007-14

- 5 - . . . IN WITNESS WHEREOF, I have hereunto set my hand and seal this 11 th day of January, 2007. (signature)____________ Betty M. Wetzel

. . . I, [Appellant], have read the attached power of atto rney and am the person identified as the agent for the pri ncipal. I hereby acknowledge that in the absence of a specific provision to the contrary in the power of attorney or in 20 Pa.C.S. when I act as agent: I shall exercise the powers for the benefit of the principal. I shall keep the assets of the principal separate from m y assets. I shall exercise reasonable caution and prudence. I shall keep a full and accurate record of all actions, receipts and disbursements on behalf of the principal. (signature) David L. Patton, Agent Power of Attorney, 1/11/07, at 1-4 (some internal ca pitalization omitted). During the preliminary hearing, the Commonwealth pr esented the testimony of Ms. Wetzel. Ms. Wetzel testified that she did not authorize Appellant to transfer any money from her accounts into Appellant’s own, personal accounts and that she did not authorize Appel lant to take her money and spend it for Appellant’s own, personal benef it. N.T. PreliminaryJ-A11007-14

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Hearing, 10/28/10, at 38-41. 2 Moreover, Ms. Wetzel testified that, because of Appellant’s actions, she now has “no money at all” and that she received no benefit from Appellant’s transactions. Id. at 38-43. At the conclusion of the preliminary hearing, the ma gisterial district judge bound Appellant over for court on all charges. Id. at 63. On January 14, 2011, Appellant filed an omnibus pre- trial motion and claimed that the trial court must quash the informatio n because: 1) the power of attorney authorized Appellant to make “unl imited gifts” of Ms. Wetzel’s assets – and, therefore, the power of attorney allowed Appellant to empty Ms. Wetzel’s bank accounts and “gift” the money t o Appellant individually; and, 2) Pennsylvania has no law that cr iminally punishes the abuse of a power of attorney. Appellant’s Omnibus Pre -Trial Motion, 1/14/11, at 1-6. On May 2, 2011, the trial court held a hearing on Ap pellant’s pre-trial motion, during which time Appellant presented the test imony of attorney David P. Brandt (hereinafter “Attorney Brandt”) as b oth a lay and an expert

witness in the case. See , e.g. , Commonwealth v. Huggins , 68 A.3d 962, 967 (Pa. Super. 2013) (“the [Pennsylvania Rules of Evidence] do not

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2 The transcript of the preliminary hearing states that the hearing took place on October 28, 2009. However, it is clear that the pr eliminary hearing occurred on October 28, 2010. See , e.g. , Subpoena to Betty Wetzel, 10/21/10, at 1 (declaring that Ms. Wetzel was ordered to appear for the October 28, 2010 preliminary hearing).J-A11007-14

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preclude a single witness from testifying, or offering o pinions, in the capacity as both a lay and an expert witness”). As Attorney Bra ndt testified, he drafted the relevant power of attorney in this case an d he also “practice[s] extensively in [the field of] durable powers of attor ney.” N.T. Pre-Trial Motion, 5/2/11, at 19-20. The Commonwealth did not object to Attorney Brandt’s lay testimony and the trial court accepted Att orney Brandt as an expert in “the [field] of powers of attorney.” Id. at 20-21. Attorney Brandt testified that, when he drafts a pow er of attorney, he always includes the provision granting the agent the po wer “to make limited or unlimited gifts.” Id. at 27. Further, on direct examination, Attorney Brandt testified that the phrase “to make limited or unlimited gifts” is “completely unconditional” – the phrase “enables an age nt to do anything that the principal can do” and it does not “limit to whom a gift can be made.”

Id. at 26. Attorney Brandt also testified that, when he drafted the power of attorney in this specific case, he “explained to Ms. Wetze l this power of attorney would enable [Appellant] to do anything th at she could do.” Id. However, on cross-examination, Attorney Brandt retrea ted from his testimony that the gift-giving authority in the powe r of attorney was “completely unconditional.” Indeed, on cross-examinatio n, Attorney Brandt testified that the power of gift-giving – like every authority in the power of attorney – is subject to the condition that the agent “ exercise the power[] for the benefit of the principal.” Id. at 30-31. The trial court denied Appellant’s pre-trial motion o n July 7, 2011.J-A11007-14

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On February 24, 2011, the Commonwealth filed a moti on to preserve Ms. Wetzel’s testimony and, on June 27, 2011, the part ies deposed Ms. Wetzel. During this deposition, Ms. Wetzel testified consistently with her preliminary hearing testimony. See N.T. Betty Wetzel Deposition, 6/27/11, at 28-29, 31-36, and 37-38. The case proceeded to a non-jury trial on August 27, 2 012, where the case was tried by stipulated evidence. With respect to th e Commonwealth’s case, the Commonwealth introduced (and Appellant stipul ated to) the following evidence: 1) the Commonwealth’s proposed ex pert witness, Linda S. Mill, is “qualified as an expert in the field of a ccounting and fraud examination;” 2) Ms. Mill’s expert report is admitted in its entirety; 3) if called to testify, Ms. Mill would testify consistently wit h her expert report, wherein Ms. Mills concluded that Appellant removed “$ 282,905.55 in funds [] from Ms. Wetzel’s accounts . . . without any authoriz ation by or apparent benefit to Ms. Wetzel,” that Appellant misappropriate d all of those funds, that Appellant deposited only $5,761.35 in Ms. Wetzel ’s accounts, that Appellant caused Ms. Wetzel a net loss of $277,144.20, and that Appellant used the $277,144.20 for Appellant’s own benefit; 4) Ms. Wetzel’s June 24, 2011 deposition testimony “is true and accurate and if [she] were to testify at trial her testimony would be consistent with that co ntained in [the] transcript;” 5) the “financial records submitted by the Commonwealth are true and accurate copies of [f]inancial documents from acco unts belonging to Betty Wetzel and/or [Appellant];” and, 6) the tr anscripts from theJ-A11007-14

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preliminary hearings that occurred in the case are admi tted and “all individuals testifying at those hearings would testif y consistently if called at [t]rial.” N.T. Trial, 8/27/12, at 17-18; Expert Re port of Linda S. Mill, 4/4/12,

at 1-7. The Commonwealth then rested its case. Appellant presented his case by introducing the followin g stipulated evidence. First, the parties stipulated that, were Ap pellant to testify at trial, Appellant would testify to the following: 1) he is Ms. Wetzel’s nephew; 2) Ms. Wetzel “had no living husband nor did she have an y children during her lifetime and [she] was a widow at the time of executio n of her [p]ower of [a]ttorney on January 11, 2007;” 3) Appellant belie ved that he did not “unlawfully [take] or exercise[] unlawful control over any property of Betty Wetzel with the intent to deprive her of said proper ty;” 4) Appellant believed he “made all appropriate payments and/or dispositions o f any property of Betty Wetzel that came into his possession and control and said payments and dispositions were all made pursuant to the power gr anted to him by Betty Wetzel” in the power of attorney; 5) Appellan t believed that he, “at no time, intentionally, knowingly, recklessly[,] or negli gently violated the provisions of [the power of attorney] and at no time felt as though he was in violation of any criminal statute;” 6) Appellant beli eved that did not “attempt to engage in conduct that was [] outside the scope of his authority;” and, 7) Appellant believed that he did not “intend to viola te any provisions of the Pennsylvania Crimes Code relative to his conduct as the a gent of BettyJ-A11007-14

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Wetzel.” 3 N.T. Trial, 8/27/12, at 22; Appellant’s Proposed St ipulations, 6/28/12, at 1-6. During Appellant’s case, the parties also stipulated to t he May 2, 2011 testimony of Attorney Brandt and certain numbered sta tements from Ms. Mill. N.T. Trial, 8/27/12, at 24-27. Appellant th en rested his case. By order entered September 18, 2012, the trial court found Appellant guilty of 95 counts of theft by unlawful taking 4 and 95 counts of theft by

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3 Throughout Appellant’s brief to this Court, Appella nt claims that the Commonwealth stipulated that the substance of Appellan t’s declarations was true. See Appellant’s Brief at 27-28, 34-35, and 50-51. Appe llant’s claim constitutes a misreading of the record evidence. Certai nly, the Commonwealth stipulated to only the fact that, if App ellant were to testify at trial, Appellant would testify to the above-summarized declarations – but that the above declarations were not necessarily true. Counsel for the Commonwealth declared:

I think the document is clear, but I want to make clea r for the record all those proposed stipulations are what [Appellant] would testify to were he to testify. . . . [T]he Commonwealth is not agreeing they’re necessarily true, but that [Appellant] would [so] testify. N.T. Trial, 8/27/12, at 23-24. Therefore, any claim based upon the faulty assertion t hat the Commonwealth stipulated to the substance of Appellant ’s proposed testimony necessarily fails; the Commonwealth stipulated to only the fact that Appellant “would testify to” the listed declarat ions.

4 18 Pa.C.S.A. § 3921(a) defines theft by unlawful ta king or disposition as follows:

(Footnote Continued Next Page)J-A11007-14

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failure to make required disposition of funds received

. 5 Trial Court Order, 9/18/12, at 1. On October 24, 2012, the trial court sentenced Appellant to an aggregate term of 30 to 60 months in prison for th e above convictions. The trial court then issued an amended sentencing order on November 6, 2012, but the amended order did not alter the trial court’s original sentencing scheme. Trial Court Order, 11/6/12, at 1. Appellant filed a timely notice of appeal and the tr ial court ordered Appellant to file and serve a concise statement of erro rs complained of on appeal, pursuant to Pennsylvania Rule of Appellate Pr ocedure 1925(b).

(Footnote Continued) _______________________

A person is guilty of theft if he unlawfully takes, or exercises unlawful control over, movable property of another w ith intent to deprive him thereof. 18 Pa.C.S.A. § 3921(a).

5 18 Pa.C.S.A. § 3927(a) defines theft by failure to make required disposition of funds received as follows:

A person who obtains property upon agreement, or subje ct to a known legal obligation, to make specified paymen ts or other 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 intentio nally deals with the property obtained as his own and fails to mak e the required payment or disposition. The foregoing appli es 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 paymen t or disposition. 18 Pa.C.S.A. § 3927(a).J-A11007-14

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Appellant complied and listed the following claims in h is Rule 1925(b)

statement:

[1.] Omnibus [p]retrial [m]otions for [r]elief were f iled in [the case]. The [trial c]ourt denied the relief sought and therefore [] Appellant challenges those denials and challenges as well all issues that were raised in the [o]mnibus [m]otions and were denied as well as all subsidiary issues contained therein. . . . [2.] At the suggestion, request[,] and insistence of the [d]istrict [a]ttorney, [the case was] tried by [the tri al court] without a jury and further, at the request and insist ence of the [d]istrict [a]ttorney’s [o]ffice, the matter was sub mitted to the [trial court] for a bench trial on stipulated f acts submitted to the [trial court] by the Commonwealth an d [Appellant] and approved by the opposing party. Suc h stipulations were introduced at the trial of this matte r and were to be the basis for the [trial court’s] findings a nd ultimate verdict. It is submitted that [the trial cou rt] failed to consider the stipulation of facts as submitted, especiall y those of [Appellant] which clearly indicate a full uncontroverted defense and which stipulated set of facts clearly show the [trial court’s] verdict in this matter was in error. The submitted stipulation of facts by [] Appell ant in this matter was approved by the Commonwealth and at n o time challenged any said stipulated facts and as such, admitted to their truthfulness. [The trial court] err ed in not considering those stipulations and the significance of the same. [3.] [The trial court] erred in failing to rule that the [p]ower of [a]ttorney executed by Betty Wetzel in this matte r authorized her [a]gent, [Appellant], to make limite d as well as unlimited gifts under the “[s]pecial [r]ules” pursuant to Title 20 of the Pennsylvania Consolidated Statutes. T he [trial court] erred also in failing to rule that if t here was a violation by the agent in the [p]ower of [a]ttorney , then the appropriate remedy would be removal from that positi on rather than criminal sanctions which are not provided fo r by statute in this Commonwealth. No such criminal action can be maintained and the singular remedy provided is forJ-A11007-14

- 13 - removal of the [a]gent by the [p]rincipal or someone acting on behalf of the [p]rincipal. The [p]ower of [a]tto rney as prepared and executed by Betty Wetzel is by reference hereto made a part hereof. In addition, [the trial court] erred in failing to hold that [Appellant] was acting within the scope of and pursuant to the authority granted him pursuant to the aforesaid [p]ower of [a]ttorney. [4.] [The trial court] erred by relying on unreporte d and unprecedented decisions on which the [trial court] based i ts verdict in this matter. [5.] The evidence presented in the non-jury trial of this matter was insufficient to support the verdict of [the trial court]. In viewing all of the evidence admitted at t he trial of this matter, especially that submitted by stipulation and viewing that evidence in the light most favorable to the Commonwealth which is and was insufficient evidence to enable you, [the trial court], as [f]act [f]inder, to find each and every element of the crimes charged beyond a reasonable doubt. Appellant’s Rule 1925(b) Statement, 12/10/12, at 2-5

. Appellant now raises the following claims to this Court : 1. Whether, viewing all of the evidence admitted at the trial of this matter, especially that submitted by stipulation , and viewing that evidence in the light most favorable to the Commonwealth, there was sufficient evidence to find each and every element of the crimes charged beyond a reasonable doubt? 2. Whether the trial court erred and violated Appell ant’s due process right to fair notice in failing to rule that th e [p]ower of [a]ttorney executed by Betty Wetzel in this matte r authorized her [a]gent, [] Appellant, to make both limited and unlimited gifts under the “[s]pecial [r]ules” pursu ant to Title 20 of the Pennsylvania Consolidated Statutes? 3. Whether the trial court erred in failing to rule that if there was a violation by the [a]gent in the [p]ower of [a] ttorney, then the appropriate remedy would be removal from t hatJ-A11007-14

- 14 - position rather than criminal sanctions which are not provided for by statute in this Commonwealth? 4. Whether the trial court erred in denying Appellan t’s omnibus pretrial motions for pretrial relief where th e Commonwealth failed to establish a prima facie case that [Appellant] committed theft by making gifts under an unlimited gift power of attorney and criminal prosecut ion of Appellant violates his due process right to fair notice? 5. Whether the trial court erred by relying on unrep orted, non-precedential decisions in reaching its verdict in thi s matter? Appellant’s Brief at 8-9. We have reviewed the briefs of the parties, the relev ant law, the certified record, and the well-written opinions of the able trial judge, the

Honorable James G. Arner. We conclude that there has b een no error in this case and that the trial court’s opinions, filed on July 6, 2011, September 18, 2012, and February 13, 2013, meticulously and accurate ly dispose of Appellant’s claims on appeal. Therefore, we affirm o n the basis of the trial court’s opinions and adopt them as our own. In any fut ure filings with this or any other court addressing this ruling, the filing p arty shall attach copies of the trial court’s opinions. Further, and although the trial court has thoroughly explained the reasons why Appellant’s claims fail, we note the followi ng. First, Appellant claims that the evidence was insufficient to support his theft convictions because: 1) the unlimited gift provision in the powe r of attorney allowed Appellant to self-gift all of Ms. Wetzel’s money to Ap pellant individually; 2) the Commonwealth stipulated to the substance of Appella nt’s declarationJ-A11007-14

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that Appellant, as Ms. Wetzel’s agent, was not required to use the gift-giving power for Ms. Wetzel’s benefit; and, 3) even if Appel lant’s actions were not authorized, Appellant lacked the necessary mens rea to commit the theft crimes because he was acting under a power of attorney. See Appellant’s

Brief at 26-46. At the outset, we note that Appellant’s Rule 1925(b) statement broadly and generically claimed that the evidence was insuffici ent to support his convictions. Appellant’s statement simply declared:

The evidence presented in the non-jury trial of this m atter was insufficient to support the verdict of [the trial cou rt]. In viewing all of the evidence admitted at the trial of this matter, especially that submitted by stipulation and v iewing that evidence in the light most favorable to the Commonwealth which is and was insufficient evidence to enable you, [the trial court], as [f]act [f]inder, to find each and every element of the crimes charged beyond a reasonable doubt. Appellant’s Rule 1925(b) Statement, 12/10/12, at 4. Normally, this generic statement would require that we find Appellant’s entire sufficiency of the evidence claim waived on appe al. See

Commonwealth v. Garland , 63 A.3d 339, 344 (Pa. Super. 2013) (“In order to preserve a challenge to the sufficiency of t he evidence on appeal, an appellant's Rule 1925(b) statement must state with specificity the element or elements upon which the appellant alleges t hat the evidence was insufficient”). Nevertheless, Appellant argued through out the lower court proceedings that the power of attorney explicitly auth orized his actions inJ-A11007-14

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this case. Moreover, in Appellant’s Rule 1925(b) state ment, Appellant claimed that he could not have been criminally prosecute d for theft because he “was acting within the scope of and pursuant to the a uthority granted him pursuant to the aforesaid [p]ower of [a]ttorney.” Ap pellant’s Rule 1925(b) Statement, 12/10/12, at 3-4. Finally, when the tri al court discussed Appellant’s sufficiency of the evidence claim in its opi nion, the trial court was able to discern that the basis of Appellant’s claim was that the power of attorney explicitly authorized Appellant’s actions. T rial Court Opinion, 2/13/13, at 9. Therefore, we conclude that Appellant has preserved the first sub-issue of his sufficiency of the evidence claim: that th e evidence was

insufficient to sustain his theft convictions because the u nlimited gift provision in the power of attorney explicitly allowed Appellant to self-gift all of Ms. Wetzel’s money to Appellant individually. How ever, we conclude that Appellant has waived his second and third sub-issues, as App ellant failed to include the claims in his Rule 1925(b) statement and t he trial court was unable to “apprehend [the] claim and address it” in it s opinion. 6 See Commonwealth v. Laboy , 936 A.2d 1058 (Pa. 2007).

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6 Further, even if Appellant preserved the second sub-issu e in his first appellate claim, the claim fails. With respect to the se cond sub-issue of Appellant’s first claim, Appellant claims that the evid ence was insufficient to support his convictions because, at trial, the Commonwealt h stipulated to the substance of Appellant’s declaration that Appellant , as Ms. Wetzel’s agent, was not required to use the gift-giving power for Ms. Wetzel’s benefit. As we have already explained, this claim fails because i t is factually (Footnote Continued Next Page)J-A11007-14

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Simply stated, we reject Appellant’s bold claim that th e “unlimited gift” provision in the power of attorney provided Appellan t with a license to steal Ms. Wetzel’s assets and use all of her money for Appellan t’s own benefit. To the contrary, the gifting power was clearly subject to t he condition that Appellant use the power “for [Ms. Wetzel’s] benefit” – and Appellant clearly

violated this condition when he took all of Ms. Wetzel ’s money and used it as if it was his own. Therefore, since Appellant’s actions w ere not authorized by the power of attorney, Appellant’s sufficiency of t he evidence claim necessarily fails. For Appellant’s second claim on appeal, Appellant conte nds that the theft convictions violated his due process rights because h e was not given fair notice that his actions were criminal. According to Appellant, “[t]here is nothing in the statutes or in prior reported decisions t o indicate that selfgifts could amount to theft under an unlimited gift power of attorney.” Appellant’s Brief at 47. This claim is waived, as Appel lant failed to include the claim in his Rule 1925(b) statement. Pa.R.A.P. 1 925(b)(4)(iv) (“[i]ssues not included in the [Rule 1925(b)] Statement . . . a re waived”). Further, even if the claim were not waived, the claim fails, as we have long held that

(Footnote Continued) _______________________ baseless: the Commonwealth did not stipulate that the substance of Appellant’s declarations was true. The Commonwealth on ly stipulated that “all those proposed [declarations] are what [Appellant] would testify to were he to testify. . . . [T]he Commonwealth is not agree ing they’re necessarily true, but that [Appellant] would [so] testify.” N.T . Trial, 8/27/12, at 23-24J-A11007-14

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a fiduciary “can be convicted of an embezzlement-type offense . . . [such as] 18 Pa.C.S.A. § 3927 [(theft by failure to make requ ired disposition of funds received)] . . . if he or she misappropriates funds for a use inconsistent with the purpose for which the funds are held.” Commonwealth v. Coward , 478 A.2d 1384, 1387 (Pa. Super. 1984). In the case at bar, the power of attorney provided Ap pellant with the power to make “unlimited gifts” of Ms. Wetzel’s assets – but the power was subject to the condition that Appellant “exercise the po wer[] for the benefit of” Ms. Wetzel. Power of Attorney, 1/11/07, at 1-4. Appellant exceeded this authority – and “misappropriate[d Ms. Wetzel’s] funds f or a use inconsistent with the purpose for which the funds [were being] held ” – when he used the power of attorney as if it were a license to steal. Coward , 478 A.2d at 1387. In doing so, Appellant subjected himself to prose cution for theft by unlawful taking and theft by failure to make requir ed disposition of funds received. Appellant’s due process claim fails. Third, Appellant claims that the trial court “erred i n failing to rule that if there was a violation by Appellant in the power o f attorney, then the appropriate remedy would be removal from that positi on and not criminal sanctions.” According to Appellant, he should not have been criminally prosecuted, as “Pennsylvania has no criminal statute speci fically governing the misuse of a power of attorney.” Appellant’s Brie f at 52. This claim fails because Appellant was prosecuted under the theft statut es – and, as wasJ-A11007-14

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explained above, we have long held that a fiduciary “can be convicted of an embezzlement-type offense . . . [such as] 18 Pa.C.S.A. § 3927 [(theft by failure to make required disposition of funds received )] . . . if he or she misappropriates funds for a use inconsistent with the purp ose for which the

funds are held.” Coward , 478 A.2d at 1387. 7 Next, Appellant claims that the trial court erred in denying his omnibus pre-trial motion. This claim is based upon the argumen t that Appellant’s actions were authorized by the power of attorney and that he did not have “fair notice” that his actions constituted crimes. Appell ant’s Brief at 57. As was explained above, these claims fail. Finally, Appellant claims that the trial court erred w hen it “rel[ied] on unreported, non-precedential decisions in reaching its v erdict in this matter.”

Id. at 58. Appellant has not explained how this action ca used him prejudice. As a result, Appellant is not entitled to relief on t his claim. Judgment of sentence affirmed. Jurisdiction relinquishe d.

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7 Any claim that Appellant’s convictions were in violatio n of “the rule of lenity and strict construction of criminal statutes” is waived, a s Appellant did not include any such claim in his Rule 1925(b) statement. See Appellant’s Brief at 54.J-A11007-14

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Judgment Entered.

Joseph D. Seletyn, Esq. Prothonotary

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