Sufficiency of the Evidence to Prove Fraudulent Intent

Commonwealth v. Donahue, 245 A.3d 1044 (Pa. Super. 2020)(unreported), allocatur granted Aug. 27, 2021, appeal docket 70 WAL 2021

In early 2017, Brian Danial Donahue contracted with the Walnut Commons Condo Association to replace the condo complex’s roof. Donahue told the Association’s officers, Sharon Mistick and Christopher March, that the work would take about six days to complete. On March 16, 2017, the Association gave Donahue a check for $8,000 as a down payment for the work and to cover the cost of the materials Donahue would need to buy to complete the agreed-upon work. Shortly thereafter, the check was made out to “Catherine Donahue” and cashed. From then until August 2017, Donahue completed minimal work on the project and failed to communicate with or respond to inquires from Mistick and March. In August, Donahue met with Mistick and March to discuss the roof, at which time Donahue told Mistick and March that he had not yet worked on the roofing project because of personal injuries, family issues, and rainfall. Mistick and March agreed to let Donahue complete the job, but, thereafter, Donahue did no work. Mistick and March did not hear from or see Donahue thereafter. They reported Donahue to law enforcement.

A criminal complaint was filed against Donahue on October 11, 2017, alleging one count of theft by deception in violation of 18 Pa.C.S. § 3922 and one count of home improvement fraud in violation of 73 P.S. § 517.8(a)(1). The complaint alleged that both offenses were committed “on (or about) Thursday, the 16th day of March 2017 through Thursday, the 23rd day of March, 2017.” Slip op. at 5. Fraudulent intent is an element of both offenses:

A person is guilty of theft if he intentionally obtains or withholds property of another by deception. A person deceives if he intentionally:

(1) creates or reinforces a false impression, including false impressions as to law, value, intention or other state of mind; but deception as to a person’s intention to perform a promise shall not be inferred from the fact alone that he did not subsequently perform the promise;

(2) prevents another from acquiring information which would affect his judgment of a transaction; or

(3) fails to correct a false impression which the deceiver previously created or reinforced, or which the deceiver knows to be influencing another to whom he stands in a fiduciary or confidential relationship.

Slip op. at 4.

The crime of home improvement fraud provides, in pertinent part, as follows:

(a) Offense defined.–A person commits the offense of home improvement fraud if, with intent to defraud or injure anyone or with knowledge that he is facilitating a fraud or injury to be perpetrated by anyone, the actor:

(1) makes a false or misleading statement to induce, encourage or solicit a person to enter into any written or oral agreement for home improvement services or provision of home improvement materials or to justify an increase in the previously agreed upon price;

Slip op. at 5.

Following a bench trial before the Court of Common Pleas of Allegheny County, Donahue was found guilty of both counts. Relying on Commonwealth v. Feldman, 365 A.2d 1289, 1296 (Pa. Super. 1976), the trial court explained that “the evidence presented by the Commonwealth was sufficient to support Appellant’s intention to defraud. Appellant’s intention may be inferred by Appellant’s actions.” Slip op. at 7. Donahue was sentenced to 12 months of probation for each count, to run concurrently. He filed a timely notice of appeal to the Superior Court.

On appeal, Donahue argued that the evidence presented at trial was insufficient to prove beyond a reasonable doubt the necessary fraudulent intent. He argued that because the criminal information alleged he committed the offenses between March 16, 2017—the day he received the check—and March 23, 2017—the day he claims he cashed the check—the Commonwealth was required to prove that during that time period Donahue had fraudulent intent—that he took the check and cashed it while intending to ignore his contractual obligation. Donahue asserted that he had no such intent—that he “merely ‘fell behind’ on completing the project.” Slip op. at 5. Additionally, Donahue emphasized that he testified at trial that he offered to refund the down payment, but that the Association opted to move forward with he project.

The Commonwealth argued that the attendant circumstances described at trial were sufficient to prove that when Donahue accepted and cashed the check, he did not intend to complete the project. His supposed offer to refund the down payment was evidenced at trial only by Donahue’s own testimony, which the trial court did not find credible.

The Superior Court rejected Donahue’s arguments:

Bearing in mind our standard of review, and viewing all facts in a light most favorable to the Commonwealth as verdict winner, we conclude the record supports the ruling of the trial court. The instant case reveals that Appellant accepted a down payment and cashed a check for a job that was to take six days, then failed to do any work for three months. When the Condo Association met with him, Appellant again represented he would do the work, but he did not appear for one month, after which the Association pursued criminal charges. As the trial court concluded, there was more than mere nonperformance that was indicative of Appellant’s intent. Appellant took no steps to complete the work or refund any of the Condo Association’s deposit. Moreover, the trial court, acting as fact-finder, determined that Appellant never intended to complete the job when he entered into the contract with the Condo Association. We find no reason to disagree.

Slip op. at 8-9 (internal citations omitted).

Donahue sought discretionary review. The Pennsylvania Supreme Court granted allocatur to consider two questions:

(1) Was the evidence sufficient to establish the intent element necessary to support Petitioner’s conviction for theft by deception, 18 Pa.C.S. § 3922?

(2) Was the evidence sufficient to establish the intent element necessary to support Petitioner’s conviction for home improvement fraud, 73 P.S. § 517.8(a)(1)?


For more information, contact Kevin McKeon or Dennis Whitaker.