Comm. v. McCarthy, 2018 PA Super 22 (Feb. 6, 2018)

This was an appeal out of York County.  McCarthy had been charged with theft-related offenses stemming from allegations that he misappropriated $90,000 from his mother suffering from dementia. He was convicted after a jury trial, and three issues were raised on appeal.  The issue of primary importance, which drew a dissenting opinion, concerned admitting evidence of “waste.”

In this case, the Commonwealth had sought to introduce evidence that McCarthy had allowed his mother’s residence to go to waste.  He allowed it to fall into such disrepair that it lost nearly half of its prior-assessed value of approximately $100,000.  To depict this to the jury, the Commonwealth produced photographs of the property is disarray.  The defense lodged an objection regarding this sort of evidence.  McCarthy objected, “contending ‘none of that is relevant to the case at hand,’ and ‘any issues pertaining to the house, the value of the house, the value of the estate, should be in Orphans’ Court, should be civil matters.”

The trial court, however, allowed the evidence in.  It reasoned: “McCarthy’s defense, in part, was that his mother authorized him to spend her money and that he lacked criminal intent.  Evidence that McCarthy failed to maintain the house was circumstantial evidence that tended to show McCarthy’s intent towards his mother and his mother’s assets.”

The Superior Court found that the trial court did not abuse its discretion in admitting this evidence.  The majority held:

Viewed in the context of all the evidence presented by the Commonwealth, with primary focus on the evidence showing that it was McCarthy’s failure to pay the victim’s nursing home bills that triggered the investigation leading to these charges, McCarthy’s failure to maintain the value and condition of the victim’s house is relevant for the light it sheds on McCarthy’s intent in using the victim’s credit card and directing the victim to sign blank checks he made payable to himself.

Overall, the Superior Court affirmed McCarthy’s convictions and judgment of sentence.

Notably, Judge Stabile authored a dissent.  He believed, like McCarthy, that the evidence of waste was not relevant (or material) to any element of the crimes that McCarthy was charged with.  He believed the evidence to be prejudicial, more than it was helpful, and on that ground he would have granted a new trial.  He wrote in a footnote: “I note that neither the Majority, nor the trial court, nor the Commonwealth cite any legal authority for the proposition that evidence of waste may be admitted in a trial where a defendant is charged with theft, access device fraud or forgery.  Indeed, my exhaustive research has yielded no such authority.”