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Commonwealth v. Getz

Superior Court of Pennsylvania

September 19, 2013



Appeal from the Order Entered June 24, 2011, In the Court of Common Pleas of Lehigh County, Criminal Division, at No. CP-39-CR-0001054-2010.




Appellant, Kenneth Samuel Getz, III, appeals from the judgment of sentence entered following his convictions of theft by deception, receiving stolen property, and criminal conspiracy. We affirm.

The trial court summarized the factual history of this case as follows:

On December 13, 2009, the Whitehall Township Police Department was contacted by Cole Mangum, Distribution Manager for Bell Nursery. Bell Nursery is a family business which supplies nursery merchandise to approximately 180 Home Depot stores. Bell Nursery's main location is in Maryland, with a distribution center in Whitehall, Lehigh County, Pennsylvania. Mr. Mangum began to work at the Whitehall distribution center on August 1, 2009.
Because of the nature of Bell Nursery's business, it utilizes thousands of nursery storage carts to transport the live plants to the various Home Depot stores of a large, multistate area. At trial it was established that Bell Nursery had approximately 25, 000 carts in circulation, between its distribution centers and various Home Depot locations. Each cart is comprised of four wheels, 2 ladder side panels, and shelves that slide into the ladder "rungs." The carts are configurable, with the number and height of the shelves placed in the frame variable to account for different plant heights. The majority of the carts used by Bell Nursery were painted purple and stamped with the company's name in order to allow Bell Nursery to distinguish its carts from similar carts used by other suppliers of plants. Bell Nursery purchased the carts from Wellmaster, a Canadian company that shipped the carts to Bell Nursery in parts to be constructed by Bell Nursery, depending on its needs. Each cart cost between $220 and $260. A cart containing one ladder and five shelves weighed approximately 200 pounds. No inventory of the carts was maintained by Bell Nursery. If a cart broke, it was sent to the facility in Maryland and either repaired or sent out to be scrapped. When not in use, the carts were stacked together to conserve space in the warehouse.
Bell Nursery employed numerous drivers and warehouse workers in its Whitehall location, along with one administrative assistant, an assistant warehouse manager (John Pfeiffly), and Mr. Mangum. The Appellant and his coconspirator were employed as drivers and were supervised by Mr. Pfeiffly. While working in the office on December 11, 2009, Mr. Mangum received a call from an individual working at South Whitehall Auto Salvage who reported that purple carts had been dropped off at the salvage yard and that he had scrapped them. Mr. Mangum did not authorize the scrapping of these carts, except for one occasion in December of 2009 where the company only received $100.00 for the scrapped metal carts.
Mr. Mangum reported to the salvage yard and spoke to Bernard Uphold, the owner of South Whitehall Auto Salvage. Mr. Mangum learned that two drivers, the Appellant and Mr. Scott Hendell, had been bringing purple carts to the salvage yard for some time, without Bell Nursery's approval, and that there were no carts available to be retrieved. Mr. Mangum was able to review a two page printout from the salvage yard which referenced the purple carts being salvaged and that checks were made out to either the Appellant or Mr. Hendell for the scrap metal value.
When contacted by Bell Nursery, Mr. Uphold performed a search of his records regarding the Appellant and Mr. Hendell. Mr. Uphold and an employee of the salvage yard, Dave Demaree, were able to specifically remember interacting with both individuals and that they brought in purple carts to be salvaged. They also recalled that the carts had been transported in large box trucks with the Bell Nursery logo on them. Mr. Uphold discovered that over 60 checks had been issued to the Appellant and Mr. Hendell. If the Appellant and Mr. Hendell were together (which was most often the case), the checks were made out to Mr. Hendell; in sum, only 6 checks were made out to the Appellant.
The Appellant was summoned to the warehouse and questioned about the scrapping of the carts. The Appellant asked Mr. Mangum and Mr. Pfeiffly what would happen to him and became upset and began to cry. The Appellant stated that he took the carts to be scrapped without authorization because he needed extra cash. When asked if anyone else was involved, the Appellant stated that Mr. Pfeiffly was the "mastermind" behind the criminal enterprise. Mr. Mangum called the chief executive officer of Bell Nursery and eventually called the Whitehall Police.
Because no inventory of carts was performed by Bell Nursery, Mr. Mangum learned that 628, 608 pounds of metal (carts) were scrapped and that the scrap yard paid $5.00 per 100 pounds of metal. Based on these figures and accounting for weight variances between the carts depending on how they were assembled when scrapped, Mr. Mangum estimated that the number of carts stolen was between 2, 500 and 5, 000.

Trial Court Opinion, 12/7/11, at 3-6.

The trial court further set forth the procedural history of this case as follows:

On April 19, 2010 the Appellant was arraigned on one count of Theft by Deception (18 Pa.Con.Stat.Ann. §3922 (A)(1)), one count of Receiving Stolen Property (18 Pa.Con.Stat.Ann. §3925), and one count of Criminal Conspiracy (18 Pa.Con.Stat.Ann. §903). After Jury Trial on January 7-11, 2011, the Appellant was convicted of all three counts. A sentencing hearing was held on February 11, 2011 and the Appellant was sentenced to undergo a term of imprisonment of not less [than] thirty (30) months nor more than sixty (60) months and was ordered to pay restitution in the amount of $665, 359.50, jointly and severally liable with the co-conspirator, Scott Hendell.
A Motion to Reconsider Sentence and Award of Restitution was filed on February 22, 2011. On May 10, 2011, after hearing on the matter, the Commonwealth requested a certified copy of the Indemnity Agreement between the victim in this case and its insurer. On that same date, the Court entered an Order denying the Appellant's motion to modify sentence and a further restitution hearing was scheduled for June 24, 2011.
Following the hearing on June 24, 2011, the Court issued an order modifying the restitution in this matter to the amount of $330, 643.22 to National Union Fire Insurance Company of Pittsburgh, PA and $10, 000.00 to Bell Nursery. The restitution amounts are jointly and severally liable between the Appellant and his co-conspirator, Mr. Hendell.

Trial Court Opinion, 12/7/11, at 2-3.

On July 15, 2011, Appellant filed a pro se appeal to the Commonwealth Court. In an order dated July 25, 2011, the Commonwealth Court transferred the appeal to this Court. On August 29, 2011, the trial court issued an order directing Appellant to file, within twenty-one days, a statement of errors pursuant to Pennsylvania Rule of Appellate Procedure 1925(b). On September 16, 2011, Appellant filed a pro se Rule 1925(b) statement which listed the following issues:

1. Restitution Sentence
2. Sentence

Pro Se Statement of Errors Complained of on Appeal, 9/16/11, at 1 (verbatim).

On October 7, 2011, the trial court issued an order granting Appellant an extension of time, of twenty-one days, to file an amended Rule 1925(b) statement. On October 25, 2011, Appellant filed a second Rule 1925(b) statement which listed the following issues:

1. Sentencing Court erred by ordering restitution that was speculative, excessive and not proved by the record.
2. Sentencing Court erred by admitting into evidence a insurance check that was speculative and not proved by the record.
3. Sentencing Court erred by admitting deductable into restitution that was speculative and not proved by the record.
4. Sentencing Court erred by admitting into evidence a Indemnity Agreement that was incomplete, ...

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