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[U] Commonwealth v. Shupp

Superior Court of Pennsylvania

November 6, 2013

DARYL L. SHUPP, JR. Appellant


Appeal from the Judgment of Sentence December 7, 2012 In the Court of Common Pleas of Lancaster County Criminal Division at No(s): CP-36-CR-0000506-2011, CP-36-CR-0000616-2012 CP-36-CR-0000740-2012




Appellant, Daryl L. Shupp, Jr., appeals from the December 7, 2012 judgment of sentence of four to 12 years' imprisonment, plus seven years' probation, and restitution in the amount of $293, 806.64, imposed after he pled guilty to 31 counts of theft by deception.[1] After careful review, we affirm.

The trial court has set forth the relevant factual and procedural history as follows.

Over the course of eight years, [Appellant] defrauded his employer, Credit Bureau of Lancaster County ("CBLC") out of $241, 282.23. [Appellant] was the IT director for CBLC. [Appellant] submitted false purchase orders to his employer for hardware and software he claimed were needed to run CBLC's IT department. With each submission, [Appellant] requested a check made out to the vender for him to send the vender for the merchandise. Unbeknownst to his employer, the venders were nonexistent. An audit revealed that [Appellant] deposited the checks written to the nonexistent vendors into his personal bank account. [Appellant] also coded purchases made with the company's credit card as items for the IT department. However, the audit confirmed that neither the products for which [Appellant] submitted purchase orders nor the credit card items were installed on CBLC's computer system. Rather, CBLC's computer system was severely compromised with failing and out-of-date hardware and software. CBLC terminated [Appellant]'s employment in October of 2009 following the discovery of his conduct. CBLC reported [Appellant]'s conduct to the police and a criminal investigation started.
Thereafter, [Appellant] was the owner of Daryl Shupp Computers ("DSC"). In February of 2011, Laser Labs, Inc. hired [Appellant] to be its IT director. As part of his employment, [Appellant] agreed to stop doing business as DSC and direct all new and existing clients to Laser Labs. [Appellant] signed a non-compete agreement to that extent. However, [Appellant] proceeded to bill customers through DSC rather than Laser Labs for products and services provided by Laser Labs. Laser Labs unknowingly bore the cost of supplying customers with products and services while DSC received the payments.
Following investigation, [Appellant] was charged in connection with his defrauding of CBLC and Laser Labs. On September 24, 2012, [Appellant] pled guilty on the three above dockets. On Docket Number 506-2-11, [Appellant] pleaded guilty to 13 counts of theft by deception graded as third degree felonies, [eight] counts of theft by deception graded as misdemeanors of the first degree, and one count of theft by deception graded as a third degree misdemeanor. On Docket Number 616-2012, [Appellant] pleaded guilty to two counts of theft by deception, graded as second degree misdemeanors. On Docket Number 740-2012, [Appellant] pleaded guilty to four counts of theft by deception, graded as second degree misdemeanors. The [trial c]ourt ordered a pre-sentence investigation.
On December 7, 2012, [Appellant] appeared for sentencing. On Docket Number 506-2012, the [trial c]ourt sentenced [Appellant] to one to three years of state imprisonment, to be served consecutively, on four of the third degree felony theft by deception counts. On the remaining third degree felony theft by deception counts, the [trial c]ourt sentenced [Appellant] to seven years of probation, to be served concurrent to each other but consecutive to the prison term. On Docket Number 616-2012, the [trial c]ourt sentenced [Appellant] to two years of probation on both counts, to be served concurrently. On Docket Number 740-2012, the [trial c]ourt sentenced [Appellant] to five years of probation on each of the four counts of first degree misdemeanor theft by deception counts and one year of probation on each of the three second degree misdemeanor theft by deception [] counts. The terms on this docket were made concurrent to each other and to the terms on Docket 506-2011. In sum, [Appellant] received an aggregate sentence of 4 to 12 years of imprisonment followed by seven years of probation.

Trial Court Opinion, 3/15/13, at 1-3 (footnotes omitted).

Thereafter, on December 17, 2012, Appellant filed a timely post-sentence motion averring, inter alia, that Appellant's sentence is "unusual and harsh." Appellant's Post-Sentence Motion, 12/17/12, at ¶6. On January 7, 2013, Appellant's post-sentence motion was denied. On February 6, 2013, Appellant filed a timely notice of appeal.[2]

On appeal, Appellant raises the following issue for our review.

1. Was an aggregate sentence of four to twelve years['] incarceration, plus a seven-year probationary tail for nonviolent offenses manifestly excessive and contrary to the fundamental norms underlying the sentencing process?

Appellant's Brief at 7.

Our standard of review in assessing whether a trial court has erred in fashioning a sentence is well settled. "Sentencing is a matter vested in the sound discretion of the sentencing judge, and a sentence will not be disturbed on appeal absent a manifest abuse of discretion." Commonwealth v. Holiday, 954 A.2d 6, 9 (Pa.Super. 2008), appeal denied, 972 A.2d 520 (Pa. 2009).

In fashioning a sentence, a judge is obligated to follow the general principle that the sentence imposed should call for confinement that is consistent with the protection of the public, the gravity of the offense as it relates to the impact on the life of the victim and on the community, and the rehabilitative needs of the defendant. A court is required to consider the particular circumstances of the offense and the character of the defendant. In particular, the court should refer to the defendant's prior criminal record, his age, personal characteristics and his potential for rehabilitation.

Commonwealth v. Hyland, 875 A.2d 1175, 1184 (Pa.Super. 2005) (citations and quotation marks omitted), appeal denied, 890 A.2d 1057 (Pa. 2005).

Where an appellant challenges the discretionary aspects of his sentence, as is the case here, there is no automatic right to appeal, and an appellant's appeal should be considered a petition for allowance of appeal. Commonwealth v. Mastromarino, 2 A.3d 581, 585 (Pa.Super. 2010) (citation omitted), appeal denied, 14 A.3d 825 (Pa. 2011). In order for this Court to review the discretionary aspects of his sentence, Appellant must comply with the following four-factor test.

(1) [W]hether appellant filed a timely notice of appeal, [see] Pa.R.A.P. 902, 903; (2) whether the issue was properly preserved at sentencing or in a motion to reconsider and modify sentence, [see] Pa.R.Crim.P. [708(d)]; (3) whether appellant's brief has a fatal defect, [see] Pa.R.A.P. 2119(f); and (4) whether there is a substantial question that the sentence appealed from is not appropriate under the Sentencing Code[.]

Id. (citation omitted). Upon our review of the certified record, we conclude that Appellant has satisfied the first three prongs of this test; we must therefore determine if Appellant has presented a substantial question for our review.

In determining whether a substantial question exists, we "must focus on the reasons for which the appeal is sought, in contrast to the facts underlying the appeal, which are necessary only to decide the appeal on the merits." Commonwealth v. Brickner, 41 A.3d 872, 875 (Pa.Super. 2012), quoting Commonwealth v. Tirado, 870 A.2d 362, 365 (Pa.Super. 2005) (emphasis in original). "We determine whether a particular case raises a substantial question on a case-by-case basis." Commonwealth v. Corley, 31 A.3d 293, 297 (Pa.Super. 2011) (citation omitted). "In order to establish a substantial question, an appellant must show actions by the sentencing court inconsistent with the Sentencing Code or contrary to the fundamental norms underlying the sentencing process." Id.

Instantly, Appellant argues "the sentence of four to twelve years['] incarceration with a seven-year probationary tail for non-violent offenses constituted an abuse of discretion." Appellant's Brief at 16. Specifically, Appellant argues that the trial court "failed to consider the non-violent nature of the offenses." Id. Appellant cites Commonwealth v. Parlante, 823 A.2d 927 (Pa.Super. 2003) for the proposition that the trial court "must consider all relevant factors in sentencing, including age, family history, and rehabilitative needs of the defendant, in addition to the nature of the offense." Id. at 930. Appellant argues that his work ethic and his positive history in the Marines Corps are "undisputed indicating he would be able to earn money towards restitution." Id. at 17. Accordingly, Appellant avers the trial court failed to consider the option of sentencing him to a work release program so that he could begin to pay the "significant amount of restitution to his victims which will not be repaid while he is incarcerated in state prison." Id. at 16-17. Additionally, Appellant briefly argues that "the application of the guidelines and imposition of consecutive sentences is clearly unreasonable." Id. at 16.

In Parlante, this Court held the appellant's claim that the trial court "imposed a sentence that is grossly disproportionate to her crimes and failed to consider her background or nature of offenses and provide adequate reasons on the record for the sentence[, ]" raised a substantial question. Parlante, supra at 929. The Parlante Court reasoned as follows.

These are "plausible" arguments that her sentence is "contrary to the fundamental norms which underlie the sentencing process." Commonwealth v. Mouzon, 571 Pa. 419, 812 A.2d 617, 622 (2002) (holding that appellant raises substantial question when she advances "plausible argument that her sentence was: 1) inconsistent with a specific provision of the Sentencing Code; or 2) contrary to the fundamental norms which underlie the sentencing process" even if sentence is within the statutory limit); see also Commonwealth v. Brown, 741 A.2d 726, 735 (Pa.Super. 1999) (finding that appellant presented substantial question when he alleged that sentencing court did not adequately set forth its reasons on record for sentence imposed).

Id. at 929-930 (footnote omitted).

The Parlante Court went on to determine that "[t]he record indicates that the trial court failed to consider Parlante's age, family history, rehabilitative needs, the pre-sentence report or the fact that all of her offenses were non-violent in nature and that her last two probation violations were purely technical." Id. at 930. Rather, "[t]he trial court based Parlante's sentence solely on the fact that her prior record indicated that it was likely that she would violate her probation in the future but failed to consider other important factors." Id.

Instantly, however, the record reveals that the trial court considered the following factors in sentencing Appellant.

The Court: Thank you all for your comments. The Court imposes [the] sentence for the following reasons:
[Appellant] is 37 years of age, which shows sufficient maturity to understand the significance of his acts.
He is intelligent enough to understand the significance of his acts, having been a high school graduate as well [of] a lengthy continuing education program relative to computer technology.
He can read, write and understand the English language.
He has a significant work history which shows he could have followed directions.
The only prior record is a summary offense, which by law cannot be taken into consideration here.
The Court has considered the sentencing guidelines as well as the maximum penalties authorized by the legislature.
The Court has considered the character and statements of the defendant as well as the arguments of counsel and the comments of victims as well as the writings that I've already indicated I have had a chance to review.
I would say just briefly, and this is not in a negative way, but just from the response of this Court, Ms. Lutz [of the CBLC] indicated not only the frustration with the system but the length of time it takes to get this particular individual to come before the system.
I cannot take credit for that delay, but I do take some contrary opinion with Ms. Lutz that in this courtroom victims are not overlooked. Victims are considered first and foremost.
This particular defendant had a good childhood, had a good family, had a good education, had a positive time in the United States Marine Corps, which led him to his knowledge and continuing education relative to computer software as well as computer hardware.
He was the IT director at Laser Labs. He was the IT director at the Credit Bureau.
As indicated, this was a deviant and calculated scheme to defraud, first, the Credit Union, and then after being caught with them, then Laser Labs.
The Credit Union not only lost a huge amount of money but also lost to the benefit of their employees dental and vision benefits and so has suffered significant pay freezes because of this loss of a significant amount of money.
The purpose for [Appellant] was to deceive solely for selfish gain, and he continued, after being caught, to do the same deception for selfish gain through Laser Labs.
Incarceration is warranted because a lesser sentence would depreciate the seriousness of all of these crimes.

N.T., 10/7/12, at 12-14.

The record clearly indicates the trial court considered all relevant sentencing factors as well as the PSI. Therefore, this case is distinguishable from Parlante wherein the trial court considered only one factor, ignoring all others and the PSI. As such, we conclude that Appellant has failed to raise a substantial question for our review. This Court has long recognized that "an allegation that a sentencing court failed to consider or did not adequately consider certain factors does not raise a substantial question that the sentence was inappropriate." Commonwealth v. Johnson, 961 A.2d 877, 880 (Pa.Super. 2008), appeal denied, 968 A.2d 1280 (Pa. 2009). This is so because the weight to be afforded the various sentencing factors is a discretionary matter for the sentencing court and the action of the sentencing court will not be disturbed simply because the defendant would have preferred that different weight be given to any particular factor. Commonwealth v. Marts, 889 A.2d 608, 615 (Pa.Super. 2005).

Instantly, as previously noted, the trial court considered all relevant sentencing factors, and had the benefit of a PSI. It is axiomatic "that where the trial court is informed by a pre-sentence report, it is presumed that the court is aware of all appropriate sentencing factors and considerations, and that where the court has been so informed, its discretion should not be disturbed." Commonwealth v. Downing, 990 A.2d 788, 795 (Pa.Super. 2010) (citation omitted). In its Rule 1925(a) opinion, the trial court explained its reasoning as follows.

Here, [Appellant]'s aggregate sentence, on its face, does not appear excessive in light of [Appellant]'s conduct, spanning eight years with his first employer, amounting to more than two-hundred thousand dollars beyond what is required for a third degree felony grading, and continuing even after termination from his first employer. Moreover, [Appellant]'s sentence is within the standard range and the [trial c]ourt was within its discretion in imposing consecutive terms on four of the counts. The [trial c]ourt stated its reasons for imposing sentence at length [at the sentencing hearing]. Contrary to [Appellant]'s assertion, the [trial c]ourt considered [Appellant]'s intelligence, education, and work history, the sentencing guidelines, the statements of [Appellant] and the victims, and arguments of counsel. Also, the [trial c]ourt had the benefit of a pre-sentence investigation.

Trial Court Opinion, 3/15/13, at 5 (citation omitted).[3]

Based on the foregoing, we conclude the trial court did not abuse its discretion in sentencing Appellant. Therefore, we affirm the trial court's December 7, 2012 judgment of sentence.

Judgment of sentence affirmed. Judgment Entered.

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