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[U] Commonwealth v. Sommers

Superior Court of Pennsylvania

March 7, 2014

COMMONWEALTH OF PENNSYLVANIA Appellee
v.
NORMA V. SOMMERS Appellant

NON-PRECEDENTIAL DECISION

Appeal from the Judgment of Sentence January 11, 2013 In the Court of Common Pleas of Crawford County Criminal Division at No(s): CP-20-CR-0000434-2012

BEFORE: BENDER, P.J.E., LAZARUS, J., and MUNDY, J.

MEMORANDUM

LAZARUS, J.

Norma V. Sommers appeals from the judgment of sentence[1] imposed by the Court of Common Pleas of Crawford County following her convictions for theft by failure to make required disposition of funds received[2] and misapplication of entrusted property.[3] After careful review, we affirm based on the opinion of the Honorable John F. Spataro.

The trial court set forth the underlying facts of the case as follows:

The Sommers Agency [a partnership formed by Sommers and her husband] received commissions for collecting insurance premiums for Progressive [Insurance] pursuant to their Producer's Agreement dating from 2005. In December 2008, Sommers established an escrow account ("the escrow account" or "account") at First National Bank ("the Bank"), solely for the purpose of depositing those premiums and paying Progressive. She did have, however, the option of forwarding premium checks directly to Progressive, which she exercised prior to opening the escrow account. The account was opened at First National due to non-sufficient fund ("NSF") fees and other problems with prior business accounts at Citizens and PNC Banks.
The account sustained its first NSF fee on January 23, 2009 when checks were inadvertently written on the account against a premium payment deposited into the PNC business account in 2008, and lost to PNC service charges. Sommers, attempting to cover the shortage, on that day deposited her personal check for $2, 900.00 in the account. That check also bounced, and within a week, NSF fee and overdraft charges exceeded two thousand dollars. Another personal check deposited in March to cover an escrow account check (No. 1076) previously made payable to the U.S. Treasury also resulted in Bank NSF fee and overdraft charges.3 Sommers continued to deposit premiums received from customers, along with her own funds totaling $12, 887.62 but was unable to pay Progressive in full due to account debits for bank service charges, which by September 2009 amounted to over forty thousand dollars.
3 Sommers' husband had prepared check no. 1076 as an authorized signor on the account.
Progressive, having sustained losses in the amount of $32, 210.77 (net of unpaid commissions), gave notice of termination and took back the "book of business" from Sommers Agency in mid-August of 2009, thereby terminating Sommers' ability to sell the business for what she hoped would be a substantial profit.4
4 According to her testimony, Progressive policies accounted for seventy percent of her business.

Trial Court Opinion, 3/14/13, at 2-3.

On November 8, 2012, following a two-day trial, a jury convicted Sommers of theft by failure to make required disposition of funds received and misapplication of entrusted property. On January 11, 2013, the court sentenced Sommers to pay fines totaling $700.00, to serve a probationary sentence of 84 months (supervision to terminate after 12 months providing all financial obligations paid in full), and restitution of $32, 210.77 to Progressive.

Sommers filed a timely post-sentence motion, which the court denied by memorandum and order dated March 14, 2013. On April 9, 2013, the trial court issued an opinion pursuant to Pa.R.A.P. 1925(a) in which it referred this Court to its March 14, 2013 opinion.

On appeal, Sommers raises the following issues for our review:

1. Was the evidence sufficient to convict [Sommers] of theft by failure to make required disposition of funds where she did not deal with the property as her own?
2. Was the evidence sufficient to convict [Sommers] of misapplication of entrusted property where she did not dispose of the insurance premiums in a manner that she knew was unlawful and involved a substantial risk of loss to the person for whose benefit the property was entrusted?
3. Did the lower court err in ordering [Sommers] to pay restitution to Progressive Insurance where Progressive Insurance had previously chosen to deliver an item of value, the book of insurance business which had been formerly owned by Sommers' Agency, to another agency without receiving any compensation from that other agency?

Brief of Appellant, at 6.

Where an appellant challenges the sufficiency of the evidence, this Court "must determine whether the evidence and all reasonable inferences deducible therefrom, when viewed in the light most favorable to the verdict-winner . . . are sufficient to establish all elements of the crime charged beyond a reasonable doubt." Commonwealth v. Rakowski, 987 A.2d 1215, 1217 (Pa.Super. 2010) (quoting Commonwealth v. Parker, 957 A.2d 311, 317 (Pa.Super. 2008) (citations omitted)).

Sommers challenges her conviction for theft by failure to make required disposition of funds received, which is defined, as follows, ...


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