Com. v. Kupershmidt, D. ( 2016 )

J-S44043-16
NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
COMMONWEALTH OF PENNSYLVANIA : IN THE SUPERIOR COURT OF
: PENNSYLVANIA
v. :
:
DMITRY KUPERSHMIDT, :
:
Appellant : No. 2261 EDA 2015
Appeal from the Order June 12, 2015
in the Court of Common Pleas of Pike County,
Criminal Division, No(s): CP-52-CR-0000423-2014
BEFORE: FORD ELLIOTT, P.J.E., STABILE and MUSMANNO, JJ.
MEMORANDUM BY MUSMANNO, J.: FILED JULY 08, 2016
Dmitry Kupershmidt (“Kupershmidt”) appeals from the Order denying
his Motion for Bail Modification. We affirm.
The trial court set forth the relevant factual and procedural history as
follows:
The Commonwealth filed a [C]riminal [Complaint] on [or
about May 20], 2014, charging [Kupershmidt] with nine (9)
counts of Forgery, [nine] (9) counts of Identity Theft, one [(1)]
count of Criminal use of a Communication Facility, sixty-one (61)
counts of Criminal Attempt pursuant to 18 Pa.C.S.[A.]
§ 4101(a)(2), sixty-one (61) counts of Criminal Attempt
pursuant to 18 Pa.C.S.[A.] § 4120(a), one count of Criminal
Conspiracy pursuant to 18 Pa.C.S.[A.] § 4101(a)(2), one count
of Criminal Conspiracy pursuant to 18 Pa.C.S.[A.] § 4120(a),
eight (8) counts of Tampering with Records or Identification,
sixty-one (61) counts of Criminal Attempt pursuant to 18
Pa.C.S.[A.] § 4104(a), and one (1) count of Criminal Conspiracy
pursuant to 18 Pa.C.S.[A.] § 4104(a), all relating to the election
of officers for the Wild Acres Lakes Property Owners Association
(“WALPOA”).
Bail was initially granted by Magisterial District Judge Alan
Cooper in the amount of $40,000 on May 23, 201[4], including
J-S44043-16
the non-monetary condition that [Kupershmidt] refrain from any
verbal, written and/or physical contact with [“]the alleged victim,
directly [and/]or indirectly.[”] [Kupershmidt] posted the entire
monetary bail in cash on the same day. [Kupershmidt’s] bail
[O]rder was subsequently modified by Order dated July 23,
2014, to specify that [Kupershmidt] have no contact with Robert
De[P]aolis [“DePaolis”] (a witness for the Commonwealth),[1] no
contact with SOS Property Owners,[2] no contact with current or
former WALPOA Board members except for participation in legal
proceedings, and prohibiting [Kupershmidt] from entering the
Conashaugh Lakes Community.[3]
[Kupershmidt] filed a Motion for Bail Modification (“the
Motion”) on May 28, 2015, claiming financial hardship, that the
non-monetary conditions prevent him from contact with his
friends living in the Wild Acres Lakes Community, and that he
did not present a significant flight risk due to his strong ties to
the local community. Following a hearing, the [trial c]ourt
denied [Kupershmidt’s] request by an Order filed on June 12,
2015.
The present appeal followed timely.
1
DePaolis is the Director of Operations for WALPOA. See N.T. (preliminary
hearing), 7/23/14, at 5. According to the Criminal Complaint, Kupershmidt,
who was the chairman of the WALPOA Board of Directors, and his co-
defendant, Myron Cowher (“Cowher”), who was the secretary of the WALPOA
Board of Directors, conspired to influence DePaolis to provide Cowher with
the ballots of 62 WALPOA property owners for an upcoming election of
WALPOA Board members, in order to falsify the ballots to ensure that certain
candidates secured a place on the WALPOA Board of Directors, while others
did not. See Criminal Complaint, 5/20/14, at 2-11; see also Affidavit of
Probable Cause, 5/20/14, at 1.
2
The “SOS Property Owners” consist of those individuals who own
unbuildable lots in the Delaware sewer district located in the community of
Wild Acres Lakes. See N.T. (preliminary hearing), 7/23/14, at 7-8. The 62
ballots which Cowher obtained from DePaolis were those of the SOS Property
Owners. See id. at 10.
3
Conashaugh Lakes Community is the neighborhood in which DePaolis
resides. See N.T. (preliminary hearing), 7/23/14, at 91-92.
-2-
J-S44043-16
Trial Court Opinion, 9/1/15, at 1-2 (footnotes added).4
On appeal, Kupershmidt raises the following issue for our review:
“Whether, where [Kupershmidt] has no prior record or history of witness
intimidation and is currently charged with a non-violent offense, the lower
court erred, in violation of [Kupershmidt’s] First Amendment rights, when it
[forbade] him [from having] contact, as a bail condition, with thousands of
individuals?” Brief for Appellant at 7.
Kupershmidt contends that the no-contact provision, imposed by the
trial court as a bail condition, is not permitted under the Pennsylvania Rules
of Criminal Procedure, is not narrowly tailored, and is excessive. Id. at 12.
Kupershmidt asserts that “the lower court named the entire Wild Acres
[Lakes] Community as the victim in this matter.” Id. at 13. Kupershmidt
claims that the only potential victims in this case are the members of the
Wild Acres Lakes Board and the individuals who had their ballots stolen, and
that the bail condition forbidding him from having any contact with the
thousands of individuals in the community of Wild Acres Lakes is particularly
burdensome. Id. Kupershmidt argues that the “vast number of individuals
with whom he is forbidden contact are not victims or witnesses.” Id.
Kupershmidt contends the bail condition prevents him from living happily in
the community of Wild Acres Lakes, and that, as a result of the condition, he
has had to move back to New York. Id. Kupershmidt contends that the bail
4
In its Opinion, the trial court incorrectly indicated that its Order was
entered on June 12, 2014, when, in fact, it was entered on June 12, 2015.
-3-
J-S44043-16
condition infringes on his rights to freedom of speech and association, as
guaranteed under the First Amendment of the United States Constitution.
Id. Kupershmidt asserts that there is no sufficiently important government
interest at issue to justify the bail condition imposed. Id. at 14.5
The trial court set forth the relevant law, addressed Kupershmidt’s
issue, and determined that it lacks merit.6 See Trial Court Opinion, 9/1/15,
at 4-6. We agree with the reasoning of the trial court and discern no abuse
of discretion. See id. Accordingly, we affirm the trial court’s Order.
Order affirmed.
5
Several of the arguments that Kupershmidt raises in support of his claim
constitute separate issues that were not identified in Kupershmidt’s
Statement of the Questions Presented, nor did Kupershmidt include a
separate argument in his brief regarding these separate issues. See
Pa.R.A.P. 2116 (providing that “[n]o question will be considered unless it is
stated in the statement of questions involved or is fairly suggested
thereby.”); see also Pa.R.A.P. 2119(a) (providing that “[t]he argument shall
be divided into as many parts as there are questions to be argued; and shall
have at the head of each part … the particular point to be treated therein.”).
Additionally, Kupershmidt’s argument is woefully underdeveloped. See
Pa.R.A.P. 2119(a) (stating that the parties’ briefs must include a discussion
of each question raised on appeal and a “citation of authorities as are
deemed pertinent”). Nevertheless, because the trial court addressed
Kupershmidt’s claims, we will address the issues raised by Kupershmidt on
appeal.
6
Kupershmidt incorrectly claims that, pursuant to the non-monetary bail
conditions imposed by the magistrate, he is prevented from having any
contact with all residents in the Wild Acres Lakes community. Rather,
pursuant to the bail Order, as modified on July 23, 2014, the non-monetary
conditions of Kupershmidt’s bail are that he have no contact with DePaolis,
SOS Property Owners, current or former WALPOA Board members, and that
he not enter into DePaolis’s neighborhood.
-4-
J-S44043-16
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 7/8/2016
-5-