Com. v. Berry, W. , 167 A.3d 100 ( 2017 )

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2017 PA Super 214COMMONWEALTH OF PENNSYLVANIA, IN THE SUPERIOR COURT OF
PENNSYLVANIA
Appellee
v.
WILLIS BERRY,
Appellant No. 3839 EDA 2015
Appeal from the Judgment of Sentence December 11, 2015
In the Court of Common Pleas of Philadelphia County
Criminal Division at No(s): CP-51-CR-0008847-2014
BEFORE: OLSON, SOLANO and MUSMANNO, JJ.
OPINION BY OLSON, J.: FILED JULY 10, 2017
Appellant, former Court of Common Pleas of Philadelphia County Judge
Willis Berry, appeals from the judgment of sentence entered on December
11, 2015, as made final by the order entered on February 4, 2016. In this
case, we hold that the statute criminalizing conflicts of interest does not
violate the doctrine of separation of powers, is not void for vagueness, and is
not overbroad. As we conclude that Appellant’s remaining challenges to his
convictions are without merit, we affirm his convictions. A decision rendered
by our Supreme Court during the pendency of this appeal, however, renders
Appellant’s sentence illegal. Accordingly, we vacate Appellant’s judgment of
sentence and remand for the sole purpose of resentencing.
The Court of Judicial Discipline previously summarized the factual
background of this case as follows:
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From January 1996 to [June 2009, Appellant] served as a
Common Pleas Court Judge in Philadelphia County,
Pennsylvania. . . . Prior to becoming a judge in January 1996,
[Appellant] had purchased several properties for investment
purposes. . . . After becoming a judge in 1996, [Appellant]
continued to own these properties and purchased an additional
one, owning at one point a total of 16 different vacant or
occupied properties. Several of the occupied buildings [were]
multi-unit rental properties operated by [Appellant].
Many of the properties purchased by [Appellant] were in poor
condition and non-compliant with various safety, building[,] and
licensing codes when initially purchased, and issues concerning
property condition and/or code compliance [] continued to exist
while under [Appellant’s] ownership. From January 1996
through and including August 2007, [Appellant] was issued in
excess of 70 citations by the City of Philadelphia Department of
Licenses & Inspections ([] “L&I”) for various violations of safety,
building[,] and licensing codes. The various citations issued by
L&I included failure to obtain or maintain the proper licenses or
permits, and violations involving public nuisance, building,
health[,] and safety requirements. As a result of the issuance of
these citations, [Appellant] was required to take corrective
measures to achieve compliance with the applicable code(s) or
be subject to further enforcement action.
From January 1997 through April 2007, [Appellant] used his
judicial office and judicial resources, including his secretary,
Carolyn Fleming ([] “Fleming”), to assist him in the day-to-day
operations concerning his properties. During this time period,
Fleming engaged in . . . the following activities concerning
[Appellant’s] rental properties on a regular and continuing basis
on behalf of [Appellant], at the request of [Appellant] and/or
with [Appellant’s] full knowledge and complicity: maintained
physical files at her work station on each of [Appellant’s]
tenants, containing leases, rent payment receipts, letters[,] and
other correspondence; contacted prospective or current tenants
in writing or by telephone; met with prospective or current
tenants at the Criminal Justice Center, either in [Appellant’s]
chambers or other parts of the building, for purposes of signing
leases, collecting rent[,] or addressing other rental issues;
prepared lease agreements, eviction complaints, affidavits of
possession, writs[,] and other court documents relating to rental
properties; prepared [] payments[ and] mailed correspondence
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to tenants regarding delinquent rental payments; filed eviction
complaints, judgments[,] and other court documents [] at
Landlord Tenant Court; appeared at landlord/tenant proceedings
concerning [Appellant’s] eviction actions; placed advertisements
for [Appellant’s] rental properties with local newspapers;
received and returned telephone calls from prospective tenants
resulting from the advertisements; corresponded with, and/or
telephoned, utility companies which serviced [Appellant’s] rental
properties; prepared and mailed payment checks to utility
companies for bills relating to [Appellant’s] rental properties;
prepared and made bank deposits of rental payment proceeds;
[and] organized receipts relating to [Appellant’s] properties for
submission to an accountant for preparation of [Appellant’s] tax
returns.
Fleming engaged in . . . the following activities concerning all of
[Appellant’s] properties (both rental and non-rental), on a
regular and continuing basis, on behalf of [Appellant], at the
request of [Appellant] and/or with [Appellant’s] full knowledge
and complicity: corresponded with, telephoned[,] and/or visited
L&I concerning violations issued to [Appellant]; corresponded
with, telephoned[,] and/or visited various government offices
(i.e. Water Department and Department of Revenue) for
purposes of paying bills or property taxes; received invoices,
prepared and mailed checks for payment of various bills relating
to [Appellant’s] properties, including utility companies,
construction contractors, government agencies[,] and retail
vendors.
The[se] activities . . . were performed by Fleming primarily at
her work station in [Appellant’s] judicial chambers between the
hours of 8:30 a.m. and 4:30 p.m. At times, when it was
necessary for [Appellant] to advertise a rental vacancy, he used,
or otherwise permitted, his judicial office address and/or
telephone number to be listed in classified rental
advertisements, written correspondence to tenants or
prospective tenants, and on rental signs. While engaging in the
conduct described . . . above, [Appellant] and Fleming utilized
court resources, including but not limited to, computers,
telephones, fax machine, paper, envelopes[,] and postage.
In re Berry, 979 A.2d 991, 994–996 (Pa. Ct. Jud. Disc. 2009) (Kurtz, J.,
opinion announcing the judgment of the court) (certain paragraph breaks
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and paragraph numbers omitted); see also Commonwealth’s Exhibit 1
(stipulation of facts entered into by Appellant upon which the above factual
summary was based).
The procedural history of this case is as follows. On September 4,
2014, the Commonwealth charged Appellant via criminal information with
conflict of interest1 and theft of services.2 On February 9, 2015, Appellant
moved to dismiss the charges. The motion was denied prior to trial. On July
22, 2015, Appellant was found guilty of both offenses. On December 11,
2015, the trial court sentenced Appellant to an aggregate term of three
years’ probation and deferred a determination regarding the amount of
restitution owed by Appellant.
On December 15, 2015, Appellant filed a notice of appeal. On
February 4, 2016, the trial court set the amount of restitution.3 On February
8, 2016, the trial court ordered Appellant to file a concise statement of
1
65 Pa.C.S.A. § 1103(a).
2
18 Pa.C.S.A. § 3926(b).
3
This procedure violated 18 Pa.C.S.A. § 1106(c)(2) as interpreted by
Commonwealth v. Deshong, 850 A.2d 712 (Pa. Super. 2004). In
Deshong, this Court held “that restitution must be determined at the time
of sentencing if the restitution is imposed as a direct sentence.”
Commonwealth v. Schrader, 141 A.3d 558, 562 (Pa. Super. 2016).
Furthermore, this Court held that when restitution is not imposed at the
same time as the judgment of sentence, the restitution order makes the
judgment of sentence a final, appealable order. Id., citing Deshong, 850
A.2d at 714 n.1. Therefore, Appellant’s judgment of sentence did not
become final until February 4, 2016. Pursuant to Pennsylvania Rule of
Appellate Procedure 905(a)(5), Appellant’s notice of appeal is considered
filed as of that date.
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errors complained of on appeal (“concise statement”). See Pa.R.A.P.
1925(b). On February 29, 2016, Appellant filed his concise statement. On
April 26, 2016, the trial court issued its Rule 1925(a) opinion. Both of
Appellant’s issues were included in his concise statement.
Appellant presents two issues for our review:
1. Whether the trial court erred, abused its discretion, and
unfairly prejudiced [Appellant] when [it] denied the motion to
discharge and dismiss the case[?]
2. Whether the trial court erred, abused its discretion, and
unfairly prejudiced [Appellant] when [it] foreclosed defense
counsel from questioning a witness about an oral agreement
not to prosecute[?]
Appellant’s Brief at 4 (complete capitalization omitted).
In his first issue, Appellant argues that the trial court erred in denying
his motion to dismiss because 65 Pa.C.S.A. § 1103(a) and 18 Pa.C.S.A. §
3926(a)(1) are unconstitutional. As the constitutionality of a statute is a
pure question of law, our standard of review is de novo and our scope of
review is plenary. Commonwealth v. Proctor, 156 A.3d 261, 268 (Pa.
Super. 2017) (citation omitted). “Our Supreme Court has instructed that we
must presume that statutes are constitutional and require those challenging
the constitutionality of a statute to demonstrate that it clearly, plainly, and
palpably violates the constitution.” Commonwealth v. Felder, 75 A.3d
513, 516 (Pa. Super. 2013), appeal denied, 85 A.3d 482 (Pa. 2014) (citation
omitted).
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“When attacking the constitutionality of a statute, an appellant can
raise two types of challenges: facial and as-applied.” Commonwealth v.
Thompson, 106 A.3d 742, 763 (Pa. Super. 2014), appeal denied, 134 A.3d
56 (Pa. 2016) (citation omitted). Appellant facially challenges sections
1103(a) and 3926(a)(1). A defendant “can succeed in a facial challenge to
the constitutionality of a statute only by establishing that no set of
circumstances exists under which the challenged statute would be valid, i.e.,
that the law is unconstitutional in all of its applications[.]” Commonwealth
v. McKown, 79 A.3d 678, 687 (Pa. Super. 2013), appeal denied, 91 A.3d
162 (Pa. 2014) (citations omitted).
Appellant first challenges the constitutionality of section 3926(a)(1).4
Although the docket and judgment of sentence state Appellant was convicted
under section 3926(a)(1), these were patent and obvious clerical errors.
4
Section 3926(a)(1) provides that it is illegal for an individual to
obtain[] services for himself or for another which he knows are
available only for compensation, by deception or threat, by
altering or tampering with the public utility meter or measuring
device by which such services are delivered or by causing or
permitting such altering or tampering, by making or maintaining
any unauthorized connection, whether physically, electrically or
inductively, to a distribution or transmission line, by attaching or
maintaining the attachment of any unauthorized device to any
cable, wire or other component of an electric, telephone or cable
television system or to a television receiving set connected to a
cable television system, by making or maintaining any
unauthorized modification or alteration to any device installed by
a cable television system, or by false token or other trick or
artifice to avoid payment for the service.
18 Pa.C.S.A. § 3926(a)(1).
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See Commonwealth v. Young, 695 A.2d 414, 419-420 (Pa. Super. 1997).
Appellant was charged with, and convicted of, violating 18 Pa.C.S.A.
§ 3926(b).5 See Criminal Information, 9/11/14, at 1; N.T., 7/22/15, at 32.
Accordingly, we need not address the constitutionality of section 3926(a)(1)
as Appellant was not convicted of violating that statute.6 As we ultimately
vacate Appellant’s judgment of sentence and remand for resentencing, we
decline to modify the trial court’s sentencing order.
Appellant argues that section 1103(a) is facially unconstitutional for
three reasons. First, he argues that it exceeded the General Assembly’s
authority under the Pennsylvania Constitution. Second, he argues that it is
unconstitutionally overbroad because it infringes upon his right to freedom
of speech. Third, he argues that it is unconstitutionally vague.
Section 1103(a) provides that, “No public official or public employee
shall engage in conduct that constitutes a conflict of interest.” 65 Pa.C.S.A.
§ 1103(a). “Conflict of interest” is defined as
Use by a public official or public employee of the authority of his
office or employment or any confidential information received
through his holding public office or employment for the private
pecuniary benefit of himself, a member of his immediate
5
Section 3926(b) provides that it is illegal for an individual to “hav[e]
control over the disposition of services of others to which he is not entitled,
[and] knowingly divert[] such services to his own benefit or to the benefit of
another not entitled thereto.” 18 Pa.C.S.A. § 3926(b).
6
To the extent that Appellant argues that section 3926(b) violates the
separation of powers doctrine, that argument is without merit. See
Commonwealth v. Orie Melvin, 103 A.3d 1, 15 (Pa. Super. 2014), appeal
discontinued, 440 WAL 2014 & 441 WAL 2014 (Pa. Oct. 28, 2014).
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family[,] or a business with which he or a member of his
immediate family is associated. The term does not include an
action having a de minimis economic impact or which affects to
the same degree a class consisting of the general public or a
subclass consisting of an industry, occupation or other group
which includes the public official or public employee, a member
of his immediate family[,] or a business with which he or a
member of his immediate family is associated.
65 Pa.C.S.A. § 1102.
Appellant first contends that section 1103(a) violates the doctrine of
separation of powers in that the General Assembly overstepped its authority
in passing the statute. As our Supreme Court has explained, “Under the
doctrine of separation of powers, the legislature may not exercise any power
specifically entrusted to the judiciary, which is a co-equal branch of
government. . . . Legislation that infringes on [our Supreme] Court’s
authority over courts is invalid.” Kremer v. State Ethics Comm’n, 469
A.2d 593, 595 (Pa. 1983) (citations and paragraph break omitted). Article
V, section 10(c) of the Pennsylvania Constitution defines the authority of our
Supreme Court over the judiciary and the judicial branch of state
government. It provides, in relevant part, that our
Supreme Court shall have the power to prescribe general rules
governing practice, procedure and the conduct of all courts,
justices of the peace and all officers serving process or enforcing
orders, judgments or decrees of any court or justice of the
peace, including . . . the administration of all courts and
supervision of all officers of the Judicial Branch[.]
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Pa. Const. art. V, § 10(c). Appellant argues that section 1103(a) infringes
upon our Supreme Court’s power under section 10(c) to regulate,
exclusively, members of the judiciary.
Although neither this Court nor our Supreme Court has addressed a
separation of powers challenge to section 1103(a), we find instructive this
Court’s analysis of a similar issue in Commonwealth v. Orie Melvin, 103
A.3d 1 (Pa. Super. 2014), appeal discontinued, 440 WAL 2014 & 441 WAL
2014 (Pa. Oct. 28, 2014). Former-Justice Orie Melvin was convicted of theft
of services, conspiracy to commit theft of services,7 conspiracy to tamper
with evidence,8 and misapplication of entrusted property.9 The conviction
arose from use of chambers personnel, office equipment, and supplies in the
course of her campaign for our Supreme Court. Like Appellant in the case
sub judice, she argued that these criminal statutes, as applied to members
of the judiciary, violated the doctrine of separation of powers.
This Court rejected Orie Melvin’s argument explaining that, in the
cases in which our Supreme Court invalidated statutes pursuant to the
separation of powers doctrine, e.g., Commonwealth v. Stern, 701 A.2d
568 (Pa. 1997), Kremer, and In re Dobson, 534 A.2d 460 (Pa. 1987), our
Supreme Court had adopted rules regulating the specific conduct
of attorneys and judges, thus establishing in each instance [our]
7
18 Pa.C.S.A. §§ 903, 3926.
8
18 Pa.C.S.A. §§ 903, 4910.
9
18 Pa.C.S.A. § 4113(a).
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Supreme Court’s intention to exercise its authority to regulate
the conduct at issue. More importantly, in each of those cases,
the Legislature attempted to regulate precisely the same conduct
covered by [our] Supreme Court rules. That symmetry does not
exist in this case.
Orie Melvin, 103 A.3d at 15
The other two cases cited by Appellant are similar to Stern, Kremer,
and Dobson. In Wajert v. State Ethics Comm’n, 420 A.2d 439 (Pa.
2003), our Supreme Court held that a statute prohibiting former judges from
practicing before courts they had served on for one year after leaving the
bench was unconstitutional. Id. at 442. As our Supreme Court explained,
“Long before the [statute] was enacted, [our Supreme] Court adopted the
Code of Professional Responsibility enunciating the standards governing the
professional conduct of those engaged in the practice of law in this
Commonwealth[.]” Id. Thus, because the General Assembly attempted to
regulate precisely the same conduct, our Supreme Court determined that
the statute violated the doctrine of separation of powers.
Our Supreme Court invalidated 65 Pa.C.S.A. § 1103(g) on similar
grounds in Shaulis v. State Ethics Comm’n, 833 A.2d 123 (Pa. 2003).
Section 1103(g) prohibited former government employees from representing
any person before his or her former government employer. Our Supreme
Court explained that this prohibition targeted the practice of law. Id. Thus,
in both Wajert and Shaulis, the unconstitutional statutes directly regulated
the practice of law, over which our Supreme Court has exclusive control.
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As in Orie Melvin, the symmetry present in Stern, Kremer, Dobson,
Shaulis, and Wajert is not present in this case. At all times relevant to this
case, the Code of Judicial Conduct provided that a judge “should not lend the
prestige of [his or her] office to advance the private interests of others[.]”
Pennsylvania Code of Judicial Conduct Canon 2B (2004); Pennsylvania Code
of Judicial Conduct Canon 2B (2006). This prohibition is not the same as the
conduct criminalized by section 1103(a). Section 1103(a) criminalizes the
use of the authority of an individual’s office, not the prestige associated
therewith. Neither the pre-2005 nor the post-2005 versions of the Code of
Judicial Conduct specified that a judge should not use the authority of his or
her office to advance his or her own private interest. Instead, both the pre-
2005 and post-2005 versions of the Code of Judicial Conduct only required a
judge to disqualify himself or herself if an assigned case impacted his or her
pecuniary interests. See Pennsylvania Code of Judicial Conduct Canon
3C(1)(c) (2004); Pennsylvania Code of Judicial Conduct Canon 3C(1)(c)
(2006). As is evidenced by the factual background of this case, Appellant
did not hear cases in which he had a personal financial interest. Instead, he
used the authority of his office by directing his secretary to administer his
real estate business and used court resources to avoid overhead costs.
We acknowledge that the Court of Judicial Discipline found that
Appellant violated the Code of Judicial Conduct by bringing the judiciary into
disrepute. See Berry, 979 A.2d at 1001-1003. That very broad finding
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under the Code of Judicial Conduct, however, is insufficient for us to
conclude that section 1103(a) governs a precise form of conduct regulated
by our Supreme Court. As this Court has explained:
Both the pre–2005 and post–2005 versions of the Code [of
Judicial Conduct] contain seven “canons.” Canon 2A sets forth
the directive from [our] Supreme Court that “judges should
respect and comply with the law.” Thus, under [Appellant’s]
theory, no judge could be prosecuted for the violation of any
criminal statute. The absurdity of this hypothesis is self-evident.
Orie Melvin, 103 A.3d at 16 n.6 (ellipsis omitted).
Recently, our Supreme Court re-affirmed that general restrictions, i.e.,
those that apply to all Commonwealth employees and not just attorneys
and/or judges, do not offend the separation of powers doctrine. See Yocum
v. Gaming Control Bd., 2017 WL 2291771, *9 (Pa. May 25, 2017).
Section 1103(a) is one such general restriction. It prohibits conflicts of
interest by all public employees and not just judges and attorneys.
Combined with the fact that our Supreme Court has not explicitly regulated
conflicts of interest in the Code of Judicial Conduct, this indicates that
section 1103(a) does not infringe upon our Supreme Court’s authority to
regulate members of the judiciary. Accordingly, we hold that section
1103(a), as applied to jurists, does not violate the doctrine of separation of
powers.
Appellant’s argument that section 1103(a) is unconstitutionally
overbroad because it infringes upon his right to freedom of speech is also
without merit. This Court has held that section 1103(a) does not infringe
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upon an individual’s right to freedom of speech. Commonwealth v. Orie,
88 A.3d 983, 1026 (Pa. Super. 2014), appeal denied, 99 A.3d 925 (Pa.
2014). In a related challenge, Appellant attempts to show that section
1103(a) is unconstitutionally vague on its face. As this Court explained,
however:
For a court to entertain challenges of facial vagueness, the
claims must involve First Amendment issues. When a case does
not implicate First Amendment matters, vagueness challenges
are to be evaluated in light of the facts at hand—that is, the
statute is to be reviewed as applied to the defendant’s particular
conduct.
Id. at 1024 (citation omitted). As noted above, this case does not implicate
First Amendment matters. Accordingly, we must examine Appellant’s void-
for-vagueness challenge as an as-applied challenge and not a facial
challenge.
As this Court explained
A statute may be deemed to be unconstitutionally vague if it fails
in its definiteness or adequacy of statutory expression. This
void-for-vagueness doctrine, as it is known, implicates due
process notions that a statute must provide reasonable
standards by which a person may gauge his future conduct, i.e.,
notice and warning.
Specifically with respect to a penal statute . . . to withstand
constitutional scrutiny based upon a challenge of vagueness a
statute must satisfy two requirements. A criminal statute must
define the criminal offense with sufficient definiteness that
ordinary people can understand what conduct is prohibited and
in a manner that does not encourage arbitrary and
discriminatory enforcement.
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Commonwealth v. Kakhankham, 132 A.3d 986, 990–991 (Pa. Super.
2015), appeal denied, 138 A.3d 4 (Pa. 2016) (internal quotation marks and
citations omitted).
Appellant contends that the definition of conflict of interest is
unconstitutionally vague in two respects. First, he argues that the term
“private pecuniary gain” does not provide defendants with adequate notice
of which conduct is criminalized by the statute. Second, he argues that the
term “de minimis economic impact” similarly does not provide defendants
with adequate notice of which conduct is criminalized by the statute.
Appellant’s argument that section 1103(a) is unconstitutionally vague
because of the term “private pecuniary gain” is without merit. “There is
nothing unclear about the concept of . . . private pecuniary benefit.”
Commonwealth v. Habay, 934 A.2d 732, 738 (Pa. Super. 2007), appeal
denied, 954 A.2d 575 (Pa. 2008). Thus, this Court has held that section
1103(a) is not unconstitutionally vague because of that phrase. Id. at 738-
739.
In this case, Appellant acquired a vast array of private pecuniary
benefits. He received free postage, telephone calls, and office supplies for
his private business. He was not required to rent an office as he used his
judicial chambers. Most glaringly, Appellant used his secretary as a de facto
employee for his rental business. The criminal characterization of these
pecuniary benefits is not vague. An ordinary person would understand this
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conduct is included within the definition of conflict of interest. Moreover, it
was not arbitrary and capricious to find that Appellant’s conduct led to
private pecuniary gain.
This Court has also specifically rejected Appellant’s argument that
Skilling v. United States, 561 U.S. 358 (2010) rendered section 1103(a)
unconstitutionally vague. Commonwealth v. Feese, 79 A.3d 1101, 1128
(Pa. Super. 2013).
As this Court explained:
In Skilling, the Supreme Court of the United States held that
the honest services statute, 18 U.S.C. § 1346, was limited in
application to bribe and kickback schemes, and that any
additional interpretations, particularly those that included
deprivations not only of money or property, but also of
intangible rights, would run afoul of the vagueness doctrine.
The statutory text of the honest services statute at issue in
Skilling is not remotely similar to that of the instant case.
Furthermore, the Commonwealth did not allege any sort of
intangible right deprivation as the basis of charging [a]ppellant
with violations of [section 1103(a)]. Accordingly, Skilling does
not undermine the holding in Habay, nor does it have any
controlling or persuasive authority in the instant case.
Feese, 79 A.3d at 1128 (internal alteration, quotation marks, and
citation omitted). The same is true in the case sub judice. The
Commonwealth did not allege that Appellant deprived it of intangible
benefits. Instead, the Commonwealth alleged that Appellant deprived
the Commonwealth of tangible benefits, e.g., the funds and resources
expended in the administration of Appellant’s real estate business.
Therefore, Appellant’s reliance on Skilling is misplaced.
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Appellant’s argument that section 1103(a) is unconstitutionally vague
because of the term “de minimis economic impact” is also without merit.
Section 1102 defines the term “de minimis economic impact” as “[a]n
economic consequence which has an insignificant effect.” 65 Pa.C.S.A.
§ 1102. This is a straightforward definition which uses common words.
Appellant’s use of court resources over an extended period of time, as
recounted above, clearly had an economic consequence which was not
insignificant. See Berry, 979 A.2d at 1001. In addition to using court funds
to send mail related to his rental business, Appellant did not hire a
secretary, rent office space, or obtain a business telephone line. Instead, he
used his position as a judge on the Philadelphia Court of Common Pleas to
attain these goods and services. Accordingly, we conclude that section
1103(a) is not void-for-vagueness as applied to Appellant.
In his second issue, Appellant argues that the trial court abused its
discretion in limiting his re-direct examination of Samuel Stretton, Esq., who
represented him before the Court of Judicial Discipline.10 Appellant’s counsel
asked Attorney Stretton, “Did you have any understanding with the
adversary about whether or not there was going to be any criminal
prosecution of Judge Berry?” N.T., 7/22/15, at 27. The Commonwealth
objected and the trial court sustained the objection. We review a trial
court’s decision to limit re-direct examination for an abuse of discretion.
10
Attorney Stretton also represented Appellant before the trial court in his
criminal proceedings.
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See Estate of Hicks v. Dana Companies, LLC, 984 A.2d 943, 972 (Pa.
Super. 2009), appeal denied, 19 A.3d 152 (Pa. 2011).
The evidence Appellant attempted to elicit from this question was
irrelevant. In order for evidence to be relevant, it must have a “tendency to
make a fact more or less probable than it would be without the evidence.”
Pa.R.Evid. 401(a). Whether Appellant or Attorney Stretton had an
understanding regarding prosecution following the proceedings before the
Court of Judicial Discipline did not make it more or less likely that Appellant
violated section 1103(a) and/or 3926(b). Instead, this question related only
to whether Appellant’s prosecution was barred by an agreement with the
Commonwealth. That is a purely legal question which is for the trial court,
and not the jury, to determine. Cf. Commonwealth v. Ginn, 587 A.2d
314, 316-317 (Pa. Super. 1991) (affirming trial court’s enforcement of non-
prosecution agreement as it was a purely legal question). As the evidence
Appellant attempted to elicit by this question was irrelevant, we ascertain no
abuse of discretion in the trial court’s order sustaining the Commonwealth’s
objection.
Finally, we sua sponte consider the legality of Appellant’s sentence.
See Commonwealth v. McCamey, 154 A.3d 352, 357 (Pa. Super. 2017)
(citation omitted). On February 4, 2016, as part of its judgment of
sentence, the trial court ordered Appellant to pay restitution to the
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Commonwealth.11 Nine months later, in Commonwealth v. Veon, 150
A.3d 435 (Pa. 2016), our Supreme Court held that the Commonwealth
cannot be a victim eligible for restitution under 18 Pa.C.S.A. § 1106. Id. at
448-455. As such, we conclude that Appellant’s sentence was illegal insofar
as it ordered him to pay restitution to the Commonwealth. As the restitution
was a critical part of the sentencing scheme, we vacate Appellant’s entire
judgment of sentence and remand for resentencing. See id. at 456.
In sum, we hold that the statute criminalizing conflicts of interest does
not violate the doctrine of separation of powers, is not void for vagueness,
and is not overbroad. We conclude that the trial court properly excluded an
alleged non-prosecution agreement between Appellant and the
Commonwealth. Appellant’s sentence, however, is illegal since the
Commonwealth cannot be deemed a “victim” for purposes of ordering
restitution. Accordingly, we affirm Appellant’s convictions, vacate his
judgment of sentence, and remand for the sole purpose of resentencing.
Judgment of sentence affirmed in part and vacated in part. Case
remanded. Jurisdiction relinquished.
11
The trial court did so in accordance with this Court’s then-binding
precedent of Commonwealth v. Veon, 109 A.3d 754 (Pa. Super. 2015),
vacated, 150 A.3d 435 (Pa. 2016).
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Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 7/10/2017
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