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[U] Commonwealth v. Shupp

Superior Court of Pennsylvania

November 6, 2013

COMMONWEALTH OF PENNSYLVANIA Appellee
v.
DARYL L. SHUPP, JR. Appellant

NON-PRECEDENTIAL DECISION

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

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

MEMORANDUM

MUNDY, J.

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 Rather, CBLC's computer system was severely compromised with failing and out-of-date hardware and software.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 ...

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