Com. v. Orie Melvin, J. ( 2014 )

J-A16007-14
2014 Pa. Super. 181
COMMONWEALTH OF PENNSYLVANIA, : IN THE SUPERIOR COURT OF
: PENNSYLVANIA
Appellee :
:
v. :
:
JOAN ORIE MELVIN, :
:
Appellant : No. 844 WDA 2013
Appeal from the Judgment of Sentence May 7, 2013,
Court of Common Pleas, Allegheny County,
Criminal Division at No. CP-02-CR-0009885-2012
COMMONWEALTH OF PENNSYLVANIA, : IN THE SUPERIOR COURT OF
: PENNSYLVANIA
Appellee :
:
v. :
:
JOAN ORIE MELVIN, :
:
Appellant : No. 1974 WDA 2013
Appeal from the Order November 15, 2013,
Court of Common Pleas, Allegheny County,
Criminal Division at No. CP-02-CR-0009885-2012
BEFORE: DONOHUE, OTT and MUSMANNO, JJ.
OPINION BY DONOHUE, J.: FILED AUGUST 21, 2014
Here we decide two appeals by Appellant, Joan Orie Melvin (“Orie
Melvin”), a former Justice of the Supreme Court of Pennsylvania. First, at
docket number 844 WDA 2013, Orie Melvin appeals from the judgment of
sentence following her convictions of three counts of theft of services, 18
Pa.C.S.A. § 3926(b), and one count each for conspiracy to commit theft of
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services, 18 Pa.C.S.A. § 903(a), misapplication of entrusted property, 18
Pa.C.S.A. § 4113(a), and conspiracy to tamper with or fabricate evidence,
18 Pa.C.S.A. § 903(a). For the reasons that follow, we affirm the judgment
of sentence except that we eliminate the condition that the letters of
apology to the members of the Pennsylvania judiciary be written on a
photograph of Orie Melvin in handcuffs.
Second, at docket number 1974 WDA 2013, Orie Melvin appeals the
trial court’s sua sponte order dated November 15, 2013 staying her criminal
sentence in its entirety. On this second appeal, we reverse the trial court’s
order staying Orie Melvin’s criminal sentence and reinstate the sentence set
forth in the written sentencing order dated May 7, 2013, as modified by the
written order of the trial court on May 14, 2013 with the exception that the
condition that the letters of apology to the members of the Pennsylvania
Judiciary be written on a photograph of Orie Melvin in handcuffs is
eliminated.
In 1990, Orie Melvin was appointed to fill a vacancy on the Court of
Common Pleas of Allegheny County, and in 1991 she was elected to serve a
full term on that court. In 1997, she was elected as a judge on the
Superior Court of Pennsylvania, and she won a retention election for her
seat on this Court in 2007. In 2003, Orie Melvin ran, unsuccessfully, for a
seat as a Justice of the Supreme Court of Pennsylvania. In 2009, she ran
for this position again and won a 10-year term.
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On May 18, 2012, the Commonwealth filed a nine-count criminal
complaint against Orie Melvin, alleging, inter alia, that she illegally used her
judicial staff as well as the legislative staff of her sister, former State
Senator Jane Clare Orie (“Jane Orie”), in connection with her 2003 and
2009 campaigns for the Supreme Court of Pennsylvania. At a preliminary
hearing on July 30-31, 2012, the magisterial district judge dismissed two
counts (official oppression and solicitation to tamper with evidence).1 On
August 14, 2012, the Commonwealth filed a seven-count information
charging Orie Melvin with three counts of theft of services (Counts 1-3),
conspiracy to commit theft of services (Count 4), misapplication of
entrusted property (Count 5), official oppression (Count 6), and conspiracy
to tamper with or fabricate evidence (Count 7). Information, 8/14/2012, at
1-3.
A jury trial began on January 24, 2013, and on February 21, 2013,
the jury returned guilty verdicts on all counts except for Count 6, on which
it advised the trial court that it could not reach a unanimous verdict. On
May 7, 2013, the trial court sentenced Orie Melvin on Count 1 to county
intermediate punishment (house arrest) for a maximum period of three
1
The magisterial district judge dismissed the count for official oppression
relating to Jamie Pavlot (“Pavlot”), Jane Orie’s former Chief of Staff, but
held over for trial the count (Count 6) for official oppression relating to Lisa
Sasinoski (“Sasinoski”), Orie Melvin’s former Chief Law Clerk. In addition,
the magisterial district judge dismissed the count for soliciting Pavlot to
tamper with evidence, but held over for trial the count (Count 7) for
conspiracy with Pavlot and Jane Orie to tamper with evidence.
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years, with the following conditions: that she be approved for release to
attend church services, that she volunteer in a soup kitchen three times per
week, pay a $15,000 fine, and comply with DNA registration. The trial
court imposed identical sentences with respect to Counts 3 and 4, and while
not expressly stating that the sentences for Counts 1, 3, and 4 were to run
concurrently, so indicated by ruling that all three would commence at the
same time (the date of sentencing, May 7, 2013). With respect to Counts 5
and 7, the trial court imposed terms of two years of probation and $5,000
fines. The trial court imposed no penalty on the conviction under Count 2.
The trial court incorporated all of these terms in a written sentencing
order dated May 7, 2013. Order of Sentence, 5/7/2013, at 1-3. Not set
forth in this written sentencing order, but as described in the transcript of
the May 7, 2013 sentencing hearing, the trial court purported to impose
additional conditions on Orie Melvin, including that she was removed from
the Supreme Court of Pennsylvania and could not use the term “Justice”
while on house arrest and probation. N.T., 5/7/2013, at 63-64. The trial
court also instructed Orie Melvin that she would be required to write letters
of apology to everyone on her judicial staff that did illegal work for her
benefit at her behest. Id. at 63. Finally, the trial court directed Orie Melvin
to pose in handcuffs for a photograph taken by the court photographer, on
the front of which she would be compelled to write an apology, to be sent to
every common pleas court and intermediate appellate court judge in
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Pennsylvania as well as the Justices of the Supreme Court of Pennsylvania.
Id. at 64-65.
At a subsequent sentencing hearing on May 14, 2013, the trial court
modified certain terms of Orie Melvin’s sentence. Specifically, the trial court
modified the sentences for Counts 1, 3, and 4 to provide that each count
would carry a one-year term of county intermediate punishment plus a
$15,000 fine, and that these three sentences would run consecutively to
each other. N.T., 5/14/2013, at 3. With respect to the sentences on
Counts 5 and 7, the trial court clarified that the two-year terms of probation
for these counts would run concurrently with each other, and consecutively
to the sentences on Counts 1, 3, and 4. Id. These modifications to Orie
Melvin’s sentence, along with other terms of the sentence announced by the
trial court on May 7, 2013 (including the writing of both types of apology
letters), were subsequently set forth first in a written Amended Order of
Sentence and later in a written Corrected Amended Order of Sentence.2
2
Inexplicably, all three sentencing orders are dated May 7, 2013, even
though the Amended Order of Sentence and the Corrected Amended Order
of Sentence both contain terms that were not announced by the trial court
until May 14, 2013. A notation at the bottom right-hand corner of these
two orders reflects that they were printed on May 15, 2013 and May 17,
2013, respectively. In addition, all three sentencing orders were filed at the
same docket entry (“#85 05/07/2013 Order – Sentence/Penalty
Imposed”). Orie Melvin’s Reproduced Record contains only the original
Order of Sentence (R. 7714a-15a), but does not contain either Amended
Order of Sentence or the Corrected Amended Order of Sentence. The
Commonwealth did not attempt to supplement the reproduced record to
add these two sentencing orders.
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On May 20, 2013, Orie Melvin filed a notice of appeal from the
judgment of sentence at docket number 844 WDA 2013.
Orie Melvin did not write or send letters of apology as demanded by
the trial court at the sentencing hearing on May 7, 2013, and in response,
the trial court scheduled a violation of probation hearing for October 15,
2013. On September 27, 2013, Orie Melvin applied to this Court for a stay
of the requirement that she write apology letters because to do so would
violate her constitutional rights against self-incrimination. By Opinion dated
November 6, 2013, this Court granted the requested stay, indicating that it
would remain in effect “until such time as her direct appeal in this Court has
been decided.” Commonwealth v. Melvin, 79 A.3d 1195, 1202 (Pa.
Super. 2013). In its Opinion granting the stay, this Court further indicated
that it took no position regarding the merits of any of the issues raised by
Orie Melvin on appeal. Id. Finally, this Court rejected the Commonwealth’s
request to remand the case to the trial court immediately for resentencing
because a stay would disrupt the trial court’s sentencing scheme. Id. at
1204-05.
Despite this Court’s express finding that “the grant of the Application
for Stay does not disrupt the trial court’s sentencing scheme,” on November
14, 2013 the trial court, on its own initiative, convened a “hearing on
adjustments” to Orie Melvin’s sentence, at which it concluded that this
Court’s stay of the apology letters did disrupt its sentencing scheme:
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Now, my problem now is there seems to be, and I
may well be overly sensitive about this, but the
opinion I have here from the Superior Court, there
seems to be little question as to whether or not this
is a sentencing scheme. This is a sentencing
scheme. There were several parts to the sentence.
Your client, [Orie Melvin], was placed on house
arrest for a certain period of time. She was ordered
to pay certain fines. And she was ordered to do
certain things while she was part of house arrest.
Apparently, she likes all of that except one of the
things I asked her to do. This is Column A, this isn’t
Column B, Mr. Casey. This is one sentence. It’s all
the same. And because of that, and because, to be
honest with you – I read the opinion by the Superior
Court and it was thought provoking. I would hate to
think that the Superior Court – well, not hate to
think. Well, yeah. If the Superior Court tells me
that it’s a violation of her Fifth Amendment, it may
well be. That would ruin the sentencing scheme.
And the thought of your client serving house arrest
and going to the soup kitchen and doing everything
I told her to do, on a sentence which just was
invalid, is not just.
So what I’m going to do today is I’m going to grant
the supersedeas of the whole sentence, tell the
Probation Department to cut off the bracelet and
take the equipment out of the house. So that
everybody understands this is one sentence.
N.T., 11/14/2013, at 4-5. On November 15, 2013, over Orie Melvin’s
objection that the trial court lacked jurisdiction to do so, the trial court
issued an order staying her sentence in its entirety.
On December 13, 2013, Orie Melvin filed a notice of appeal from the
trial court’s November 15, 2013 order at docket number 1974 WDA 2013.
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In the appeal at docket number 844 WDA 2013, Orie Melvin raises
fifteen issues for our consideration and determination:
I. Whether the criminal charges against Orie Melvin
are unconstitutional because they infringe upon the
Judiciary’s exclusive power to supervise the courts
under Article 5, Section 10 of the Pennsylvania
Constitution?
II. Whether it violated due process to base criminal
charges on alleged violations of an internal court
rule governing conduct by court employees?
III. Whether the warrant authorizing the seizure of Orie
Melvin’s entire private email account was
unconstitutionally overbroad in violation of the
Fourth Amendment and Article 1, Section 8 of the
Pennsylvania Constitution?
IV. Whether it was error to decline to appoint an out-of-
county judge to preside over this matter involving
Orie Melvin who is a former member of the
Allegheny County bench and where a key
prosecution witness is the wife of a sitting Allegheny
County judge?
V. Whether the extension of the statue [sic] of
limitations for ‘public officers or employees’ in 42
Pa.C.S.A. § 5552(c) applies to ‘Judicial officers’ like
Orie Melvin?
VI. Whether the criminal charges against Orie Melvin
should have been dismissed with prejudice as a
sanction for the prosecutor’s knowing introduction of
false evidence and subornation of perjury?
VII. Whether the case against Orie Melvin was properly
joined with the cases against her sister, Janine Orie,
where the charges are factually inconsistent and
each faces charges not filed against the other?
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VIII. Whether Orie Melvin had the right to have her
expert examine original electronic evidence seized
by the District Attorney from the office of former
State Senator Jane Orie?
IX. Whether Orie Melvin had the right to have her
expert examine original electronic evidence in the
possession of the Superior Court which was
searched at the request of the District Attorney?
X. Whether Orie Melvin’s request for habeas corpus
relief should have been granted as a result of the
Commonwealth’s failure to make out a prima facie
case on the theft of services, misapplication of
government property and conspiracy charges at the
preliminary hearing?
XI. Whether the trial court erred in excluding relevant
evidence relating to the productivity of Orie Melvin’s
judicial chambers as a means of negating the theft
or diversion element of the theft of services
charges?
XII. Whether the trial court deprived Orie Melvin of a fair
trial by offering personal opinions and improperly
commenting on the evidence in front of the jury?
XIII. Whether the trial court erred in concluding that the
evidence at trial was sufficient to support a
conviction for theft of services, misapplication of
government property and conspiracy?
XIV. Whether it was error for the trial court to instruct
the jury on the issue of accomplice liability after the
jury started deliberations?
XV. Whether the trial court erred constitutionally, legally
and procedurally in attempting to require Orie
Melvin to write letters of apology as part of her
criminal sentence while she continues to maintain
her innocence?
Orie Melvin’s Brief at 5-8.
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In the appeal at docket number 1974 WDA 2013, Orie Melvin raises
the following two issues for our review:
I. Whether the trial court lacked jurisdiction and
authority to sua sponte suspend Orie Melvin’s entire
sentence while all conditions of county intermediate
punishment were satisfied and while Orie Melvin’s
direct appeal was pending in this Court?
II. Whether the trial court violated Orie Melvin’s rights
under the Fifth and Fourteenth Amendments to the
United States Constitution and Article 1, Section 10
of the Pennsylvania Constitution by sua sponte
staying her criminal sentence after jeopardy
attached?
Orie Melvin’s Brief at 2-3.
I. TRIAL AND SENTENCING CLAIMS
A. The Charges and Separation of Powers Doctrine
For her first two issues on appeal at docket number 844 WDA 2013,
Orie Melvin contends that the trial court erred in not dismissing the charges
against her because they amounted to nothing more than an
unconstitutional attempt to criminalize non-criminal, court-imposed
restrictions on the political activity of judicial employees. According to Orie
Melvin, the power to discipline members of the judiciary is the exclusive
province of the Supreme Court of Pennsylvania, and that as a result, her
convictions for theft of services, conspiracy to commit theft of services, and
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misapplication of entrusted property must be dismissed.3 Orie Melvin
further argues that because the Supreme Court’s rule against political
activity by court employees does not specify any criminal sanctions for its
violation, and because no criminal statute prohibits political conduct by
court employees, she had no notice that political activity by members of her
staff could result in criminal prosecution.
The notion of the inherent power of the judiciary is implicit in the
doctrine of separation of powers. The separation of powers doctrine
provides that “the executive, the legislature and the judiciary are
independent, co-equal branches of government.” Beckert v. Warren, 439
A.2d 638, 642 (Pa. 1981). The dividing lines among the three branches
“are sometimes indistinct and are probably incapable of any precise
definition.” Stander v. Kelly, 250 A.2d 474, 482 (Pa. 1969) (plurality).
“Under the principle of separation of the powers of government, ... no
branch should exercise the functions exclusively committed to another
branch.” Sweeney v. Tucker, 375 A.2d 698, 706 (Pa. 1977).
The Supreme Court’s authority to regulate the courts and the
members of the judiciary is set forth in Article V, Section 10 of the
Pennsylvania Constitution:
3
In this regard, Orie Melvin makes no mention of her conviction of
conspiracy to tamper with or fabricate evidence (Count 7), and thus
presumably does not contend that this conviction should be dismissed on
this basis.
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(a) The Supreme Court shall exercise general
supervisory and administrative authority over all the
courts and justices of the peace, including authority
to temporarily assign judges and justices of the
peace from one court or district to another as it
deems appropriate.
* * *
(c) The 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, if such rules are
consistent with this Constitution and neither
abridge, enlarge nor modify the substantive rights
of any litigant, nor affect the right of the General
Assembly to determine the jurisdiction of any court
or justice of the peace, nor suspend nor alter any
statute of limitation or repose. All laws shall be
suspended to the extent that they are inconsistent
with rules prescribed under these provisions.
PA. CONST. art. V, § 10.
Pursuant to the authority conferred by these constitutional provisions,
the Supreme Court established the Code of Judicial Conduct to regulate the
activity of judges, and also issued an order dated November 24, 1998
prohibiting political activity by court employees (hereinafter, the “1998
Supreme Court Order”). Based upon these enactments, Orie Melvin
contends that the criminal charges against her infringed upon the Supreme
Court’s exclusive power to regulate the courts of this Commonwealth. Orie
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Melvin’s Brief at 17-18. In support of this argument, Orie Melvin directs our
attention to three Supreme Court decisions.
In Commonwealth v. Stern, 701 A.2d 568 (Pa. 1997), the Supreme
Court affirmed a trial court’s order declaring unconstitutional a statute
prohibiting the payment by lawyers of referral fees to non-lawyers. Id. at
569. The Supreme Court had already adopted a provision in the Rules of
Professional Conduct and the Rules of Disciplinary Enforcement prohibiting
lawyers from paying referral fees to non-lawyers, and thus the Supreme
Court ruled that the statute passed by the Pennsylvania Legislature
infringed upon its exclusive authority to regulate the conduct of attorneys
practicing in the Commonwealth. Id. at 573.
Similarly, in In re Dobson, 534 A.2d 460 (Pa. 1987), the Supreme
Court rejected petitions for relief by court-appointed employees from a
Supreme Court rule prohibiting said employees from engaging in partisan
political activities. Id. at 461. Although the Supreme Court had ruled that
the election of the two petitioners to positions as school board directors
constituted partisan political activity in violation of its rule, the petitioners
contended that they were entitled to relief because amendments to the
Pennsylvania Election Code permitted candidates for school board
directorships to run on multiple political tickets (essentially designating
school board directorships to be nonpartisan positions). Based upon its
exclusive constitutional supervisory power over the judiciary, including its
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employees, the Supreme Court refused to grant the requested relief, stating
that “it is for this Court, not the legislature, to determine what amounts to
prohibited political activity by judicial employees.” Id. at 464.
Finally, in Kremer v. State Ethics Commission, 469 A.2d 593 (Pa.
1983), the Supreme Court found unconstitutional as applied to judges the
financial disclosure requirements in the state’s Ethics Act applicable to
candidates running for office. Id. at 594. The Supreme Court ruled that
the Code of Judicial Conduct applicable to judges set forth detailed
provisions specifically designed to prevent conflicts of interest (financial and
otherwise), and that these provisions advanced the same interests sought
to be preserved through enforcement of the Ethics Act. Id. at 595-96. The
Supreme Court thus determined that application of the provisions of the
Ethics Act was unconstitutional as applied to judges, as the conduct of
judges running for office “must be accomplished through rules promulgated
by this Court and not by legislative enactment.” Id. at 596.
Orie Melvin argues that Stern, Dobson, and Kremer compel the
conclusion that in her case “the District Attorney is seeking to criminalize
conduct that is already the subject of regulation by the Supreme Court.”
Orie Melvin’s Brief at 22. We disagree. In those three cases, the Supreme
Court had adopted rules regulating the specific conduct of attorneys and
judges, thus establishing in each instance the Supreme Court’s intention to
exercise its authority to regulate the conduct at issue. More importantly, in
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each of those cases, the Legislature attempted to regulate precisely the
same conduct covered by the Supreme Court rules. That symmetry does
not exist in this case. While the Supreme Court has adopted a rule
prohibiting political activity by court employees, Orie Melvin was not
criminally prosecuted for using her judicial staff to advance her political
aspirations.4 None of the crimes for which she was prosecuted or convicted
specifically proscribes political activity.5 Instead she was prosecuted for the
4
We note that in its charge to the jury, the trial court instructed the jury
that Orie Melvin was not being prosecuted for violation of the court rule
against political activity:
You have heard testimony about the Supreme Court
Order dated November 24, 1998, prohibiting certain
criminal activity by court employees. It is in
evidence as [Orie Melvin’s] Exhibit Q. This Order is
a work rule that applies to court employees. It is
not a criminal law. A violation of a work rule is not
a crime. You are instructed you may not base your
verdict of guilt or innocence in any way on any
alleged violation of a court rule.
N.T., 2/15/2013, at 2805-06.
The 1998 Supreme Court Order was irrelevant to the charges against Orie
Melvin. In the absence of any such order, it remained a violation of the
theft of services statute, 18 Pa.C.S.A. § 3926(b), to use Commonwealth
paid employees for activities inuring to her personal benefit.
Because we agree that Orie Melvin was not convicted for violating the
Supreme Court’s rule against political activity, we likewise conclude that her
convictions are not unconstitutional for lack of notice of potential criminal
sanctions.
5
Section (b) of 18 Pa.C.S.A. § 3926, entitled “Theft of services,” provides
as follows: “Diversion of services -- A person is guilty of theft if, having
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use, or rather the misuse, of her judicial staff in violation of criminal
statutes prohibiting the diversion of services belonging to the
Commonwealth to her own personal benefit. The political nature of the
conduct did not serve as the basis of the criminal conviction. Any conduct
by her judicial staff that inured to Orie Melvin’s personal benefit constituted
a diversion of services from the Commonwealth, whether or not said
conduct violated the 1998 Supreme Court Order against political activity. In
sum, Orie Melvin’s convictions were based on her theft of services by using
her judicial staff and her sister’s senatorial staff, all of whom were paid with
control over the disposition of services of others to which he is not entitled,
he knowingly diverts such services to his own benefit or to the benefit of
another not entitled thereto.” 18 Pa.C.S.A. § 3926(b).
Section (a) of 18 Pa.C.S.A. § 903, entitled “Criminal conspiracy,” provides
that a person “is guilty of conspiracy with another person or persons to
commit a crime if with the intent of promoting or facilitating its commission
he: (1) agrees with such other person or persons that they or one or more
of them will engage in conduct which constitutes such crime or an attempt
or solicitation to commit such crime; or (2) agrees to aid such other person
or persons in the planning or commission of such crime or of an attempt or
solicitation to commit such crime.” 18 Pa.C.S.A. § 903(a).
Section (a) of 18 Pa.C.S.A. § 4113, entitled “Misapplication of entrusted
property of government or financial institutions,” states that “[a] person
commits an offense if he applies or disposes of property that has been
entrusted to him as a fiduciary, or property of the government or of a
financial institution, in a manner which he knows is unlawful and involves
substantial risk of loss or detriment to the owner of the property or to a
person for whose benefit the property was entrusted.” 18 Pa.C.S.A. §
4113(a).
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taxpayer dollars to advance her campaign for a seat on the Pennsylvania
Supreme Court.6
B. The Search Warrant For Personal Emails
For her third issue on appeal, Orie Melvin argues that a warrant
authorizing the seizure of her personal emails at oriemelvin@yahoo.com
and judgeoriemelvin4supreme@yahoo.com was overbroad.7 For the
6
In addition to the 1998 Supreme Court Order, Orie Melvin likewise argues
that the adoption of the Code of Judicial Conduct evidences the Supreme
Court’s exclusive power to regulate judges. Appellant’s Brief at 17. Since
Orie Melvin makes only an amorphous, non-particularized reference to the
Code of Judicial Conduct, we note generally the following to highlight the
faulty predicate for her analysis. Orie Melvin was charged with crimes that
took place during her 2003 and 2009 campaigns for the seat of a justice of
the Pennsylvania Supreme Court. During these respective campaigns, Orie
Melvin was a judge of the Superior Court of Pennsylvania. In 2003 and
2009, Orie Melvin (and all judges and justices in this Commonwealth) were
bound by the Code of Judicial Conduct. Matter of Chiovero, 570 A.2d 57,
60 (Pa. 1990) (the Code of Judicial Conduct imposes standards of conduct
upon the judiciary). The Code of Judicial Conduct during both of these time
periods was essentially unchanged since, although it was amended in 2005,
this amendment only modified various references to ensure that they were
gender neutral. 35 Pa. Bull. 6647 (Dec. 10, 2005).
Both the pre-2005 and post-2005 versions of the Code contain seven
“canons.” Canon 2A sets forth the directive from the Pennsylvania Supreme
Court that “judges should respect and comply with the law… .” Thus, under
Orie Melvin’s theory, no judge could be prosecuted for the violation of any
criminal statute. The absurdity of this hypothesis is self-evident. Moreover,
Orie Melvin was not prosecuted for theft of services or any other crime
arising from her direct campaign activities. Canon 7 articulates the
standards applicable to jurist candidates. Given the crimes charged, Canon
7 has no relevance to Orie Melvin’s argument.
7
The January 5, 2010 warrant sought “[a]ll stored communications and
other files reflecting communications to or from user account/user names
oriemelvin@yahoo.com, judgeoriemelvin4supreme@yahoo.com AND
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reasons set forth herein, we conclude that the warrant in question was
overbroad, but that the failure to suppress the contents of the email
account at trial was harmless error.
In its Rule 1925(a) opinion, the trial court addressed this issue as
follows:
This issue was not presented to this Court.
Furthermore, this issue was addressed by the
Honorable Jeffrey A. Manning in his Memorandum
Opinion Re: Suppression in Commonwealth v. Jane
C. Orie and Janine Orie at CC201010285,
CC2010010286. This Court adopts that analysis.
Trial Court Opinion, 9/12/2013, at 8.
We conclude that the issue was in fact presented to the trial court and
the trial court’s adoption of Judge Manning’s analysis was error because
Judge Manning’s analysis and ruling were erroneous. In the prior case
involving Jane Orie and Janine Orie, Jane Orie challenged as overbroad a
warrant seeking, inter alia, “all stored communications and other files …
between August 1, 2009 and the present, including all documents, images,
recordings, spreadsheets or any other data stored in digital format.”
Commonwealth v. Orie, 88 A.3d 983, 1008 (Pa. Super. 2014). Judge
Manning ruled that “the search of the AOL account JaneOrie@aol.com (Com
Ex. 10) was supported by sufficient probable cause and was not overbroad
orieonthemove@yahoo.com between August 1, 2009 and the present.”
Search Warrant Continuation Pages, 1/5/2010, at 1. On appeal, Orie Melvin
does not contest the search or seizure of emails from the
judgeoriemelvin4supreme@yahoo.com account.
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or general.” Commonwealth v. Jane C. Orie and Janine Orie, CP-02-
CR-0010285-86, at 26 (Court of Common Pleas of Allegheny County,
February 4, 2011) (unpublished memorandum). Judge Manning further
ruled that the warrant “authorized that the content of the e-mails be
searched for anything that contained information relevant to the crimes
being investigated,” and thus “cannot be considered to be overly broad.”
Id. at 26-27.
On appeal, however, this Court concluded that the warrant was
overbroad. In so doing, we first set forth the applicable law in this area:
Article I, Section 8 of the Pennsylvania Constitution
provides, in pertinent part: ‘[N]o warrant to search
any place or to seize any person or things shall
issue without describing them as nearly as may be,
nor without probable cause....’ 21 PA. CONST. Art. I
§ 8. This Court has explained:
It is a fundamental rule of law that a
warrant must name or describe with
particularity the property to be seized
and the person or place to be
searched.... The particularity
requirement prohibits a warrant that is
not particular enough and a warrant that
is overbroad. These are two separate,
though related, issues. A warrant
unconstitutional for its lack of
particularity authorizes a search in
terms so ambiguous as to allow the
executing officers to pick and choose
among an individual's possessions to
find which items to seize. This will
result in the general ‘rummaging’
banned by the [F]ourth [A]mendment.
A warrant unconstitutional for its
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overbreadth authorizes in clear or
specific terms the seizure of an entire
set of items, or documents, many of
which will prove unrelated to the crime
under investigation. ... An overbroad
warrant is unconstitutional because it
authorizes a general search and seizure.
* * *
The language of the Pennsylvania
Constitution requires that a warrant
describe the items to be seized ‘as
nearly as may be....’ The clear meaning
of the language is that a warrant must
describe the items as specifically as is
reasonably possible. This requirement
is more stringent than that of the Fourth
Amendment, which merely requires
particularity in the description. The
Pennsylvania Constitution further
requires the description to be as
particular as is reasonably possible....
Consequently, in any assessment of the
validity of the description contained in a
warrant, a court must initially determine
for what items probable cause existed.
The sufficiency of the description must
then be measured against those items
for which there was probable cause.
Any unreasonable discrepancy between
the items for which there was probable
cause and the description in the warrant
requires suppression. An unreasonable
discrepancy reveals that the description
was not as specific as was reasonably
possible.
Commonwealth v. Rivera, 816 A.2d 282, 290–91
(Pa. Super. 2003) (citations omitted), appeal
denied, 828 A.2d 350 (Pa. 2003). Because the
particularity requirement in Article I, Section 8 is
more stringent than in the Fourth Amendment, if
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the warrant is satisfactory under the Pennsylvania
Constitution it will also be satisfactory under the
federal Constitution.
Furthermore, the Pennsylvania Supreme Court has
instructed that search warrants should ‘be read in a
common sense fashion and should not be
invalidated by hypertechnical interpretations. This
may mean, for instance, that when an exact
description of a particular item is not possible, a
generic description will suffice.’ Commonwealth v.
Rega, 593 Pa. 659, 933 A.2d 997, 1012 (2007)
(citation omitted), cert. denied, 552 U.S. 1316
(2008).
Orie, 88 A.3d at 1002-03.
We then concluded that the warrant for Jane Orie’s email account was
overbroad because while the supporting affidavit provided probable cause
that evidence of criminal activity could be found in emails in the account, it
did not justify a search of every email therein, including those with no
relation to criminal activity. Id. at 1008-09. Because the warrant
permitted the seizure of every email in the account without any attempt to
distinguish the potentially relevant emails from those unrelated to the
investigation, it permitted a general search and seizure that was
unconstitutionally overbroad. Id.
The analysis in the Orie case did not, however, end there. In Orie,
we declined to reverse Judge Manning’s denial of the suppression motion
based upon the “unique facts” presented. Id. at 1008. In particular, the
evidence there showed that while law enforcement had seized Jane Orie’s
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entire email account, it did not conduct a search of its contents until after
obtaining a second warrant that provided the particularity that the first
warrant had lacked. Id. at 1009. The evidence further showed that law
enforcement had conducted this search in accordance with the specific
parameters in the second warrant. Id. at 1007. While noting that two
warrants are neither required nor preferred with respect to such searches
and seizures, we concluded that under the “unique facts” presented, the
search of Jane Orie’s email account passed constitutional muster. Id. at
1008 n.42.
No such “unique facts” exist with respect to the warrant for Orie
Melvin’s email accounts. To the contrary, although the Commonwealth did
subsequently obtain a second warrant that provided the specificity lacking
in the first warrant, the certified record reflects that the Commonwealth
began its review of Orie Melvin’s emails obtained pursuant to the first
warrant before it obtained the second warrant. In the affidavit of probable
cause in support of the second warrant, the affiant (Detective Lyle M.
Graber of the Allegheny County Office of the District Attorney) explained
that when he was reviewing the documents received from Yahoo in
response to the first warrant, he noticed a number of emails with subject
lines relating to Orie Melvin’s campaign, and that upon further inspection of
these emails he came across the name of Matthew Haverstick, a lawyer for
the Senate Republican Caucus. Affidavit of Probable Cause, 1/27/2010, at
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12. As a result, he stopped further review of the emails and sought the
second warrant, so that the documents could be reviewed by the Special
Master for privilege issues before distribution to the parties.8
Pursuant to our analysis in Orie, therefore, we must conclude that the
warrant authorizing the seizure of Orie Melvin’s personal emails at
oriemelvin@yahoo.com and judgeoriemelvin4supreme@yahoo.com was
overbroad. Unfortunately, however, while Orie Melvin contends that her
convictions should be reversed and she should be granted a new trial, Orie
Melvin’s Brief at 35, she has not offered this Court any legal basis for
granting such relief. Similarly, the Commonwealth does not attempt to
address the proper remedy in this case for the trial court’s failure to
suppress the emails obtained pursuant to the warrant in question.
“An appellate court may affirm a judgment or verdict for any reason
appearing of record.” Commonwealth v. Parker, 919 A.2d 943, 948 (Pa.
2007). In Commonwealth v. Thornton, 431 A.2d 248 (Pa. 1981), our
Supreme Court explained as follows:
The doctrine of harmless error is a technique of
appellate review designed to advance judicial
economy by obviating the necessity for a retrial
where the appellate court is convinced that a trial
error was harmless beyond a reasonable doubt. Its
purpose is premised on the well-settled proposition
that ‘[a] defendant is entitled to a fair trial but not a
perfect one.’
8
See infra at page 49 for a more detailed discussion of the appointment
of the Special Master.
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Id. at 251 (1981). We may affirm a judgment based on harmless error sua
sponte, even if the parties did not raise the argument. Commonwealth v.
Allshouse, 36 A.3d 163, 182, 182 n.21 (Pa. 2012), cert. denied, 133 S. Ct.
2336 (U.S. 2013).
An error involving state or federal constitutional law “can be harmless
only if the appellate court is convinced beyond a reasonable doubt that the
error is harmless.” Commonwealth v. Story, 383 A.2d 155, 162 (Pa.
1978). The analysis is closely tied to the facts of the case and requires an
examination of the entire record. Id. at 166 n.24; Commonwealth v.
Whiting, 517 A.2d 1327, 1333 (Pa. Super. 1986), appeal denied, 529 A.2d
1080 (Pa. 1987).
Harmless error exists where: (1) the error did not
prejudice the defendant or the prejudice was de
minimis; (2) the erroneously admitted evidence was
merely cumulative of other untainted evidence which
was substantially similar to the erroneously admitted
evidence; or (3) the properly admitted and
uncontradicted evidence of guilt was so
overwhelming and the prejudicial effect of the error
was so insignificant by comparison that the error
could not have contributed to the verdict.
Commonwealth v. Hutchinson, 811 A.2d 556, 561 (Pa. 2002) (quoting
Commonwealth v. Robinson, 721 A.2d 344, 350 (Pa. 1999)), cert.
denied, 540 U.S. 858 (2003). Based upon our review of the entire certified
record on appeal, the trial court’s failure to suppress the contents of Orie
Melvin’s email account was harmless error.
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At trial, the Commonwealth introduced 10 emails into evidence from
Orie Melvin’s email account obtained pursuant to the overbroad warrant.9
Six of these emails10 were to or from Molly Creenan (“Creenan”), a member
of Orie Melvin’s judicial staff from January 1998 through December 2009.
N.T., 2/4/2013, at 1367. While Creenan’s tenure on Orie Melvin’s judicial
staff spanned both the 2003 and 2009 political campaigns, given the scope
of the warrant, the emails at issue here relate only to the 2009 campaign.11
As a result, these six emails did not prejudice Orie Melvin, or the prejudice
was de minimis, in large part because Creenan testified that she refused to
perform any political activities during the 2009 campaign. In particular,
Creenan testified that she reluctantly performed various political activities
during Orie Melvin’s 2003 campaign, but this changed on Election Day in
November 2003 when she refused to go to a poll site as directed by Janine
9
In her Reply Brief, Orie Melvin initially identified 21 such emails. Orie
Melvin’s Reply Brief at 12. A review of the certified record, however,
demonstrates that while the Commonwealth marked 21 emails for
identification, it only introduced 10 of them into evidence. At oral argument
on May 20, 2014, this Court asked counsel for Orie Melvin to provide a
supplemental submission identifying all emails obtained pursuant to the
warrant at issue that were introduced into evidence at trial, at which time
counsel for Orie Melvin identified the 10 emails we discuss herein.
10
Exhibit 34, Tabs 9, 11, 13, 14, 25, and 26.
11
As noted hereinabove, see supra footnote 7, the warrant sought only
emails for the time period from August 1, 2009 to January 5, 2010, and
thus the documents produced in response related only to the 2009 political
campaign.
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Orie.12 Id. at 1374. When Creenan learned in December 2008 that Orie
Melvin intended to run again in the 2009 election, she testified that she
went to Orie Melvin and informed her that what she had done in 2003 “can’t
happen in 2009” and made clear to Orie Melvin that she would no longer
violate the 1998 Supreme Court Order prohibiting judicial employees from
participating in political activity. Id. at 1384-86. As a result, when asked
at trial about the six emails in question, Creenan testified that she had no
specific information about the events at issue or had not performed the
political tasks requested of her. Id. at 1414-30.
We likewise conclude that another email13 was not prejudicial or the
prejudice was de minimis. In this email, Audrey Denise Mackie (then using
her maiden name Rasmussen), a member of Jane Orie’s legislative staff,
merely provided Janine Orie (at Orie Melvin’s request) with the telephone
number of someone who had expressed an interest in holding a fundraiser
for Orie Melvin. N.T., 1/31/2013, at 824.
The three remaining emails introduced into evidence were cumulative
of other evidence already introduced at trial. In an email dated September
28, 2009 to John Degener (“Degener”), who served as a member of Orie
12
According to Creenan, when she refused to go to a poll site, she was
informed that she would have to go into the judicial office to answer the
phones, even though Election Day was a paid holiday for state workers. Id.
at 1374-76.
13
Exhibit 28, Tab 16.
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Melvin’s judicial staff from January 1998 through 2009, including as her
Chief Law Clerk from 2004 through 2009, Orie Melvin asked Degener a
question about summaries of certain pro-business decisions she had written
or joined.14 Degener testified only that he had received this email from Orie
Melvin. N.T., 2/5/2013, at 1520. To the extent that this email reflected
that Degener assisted Orie Melvin in the 2009 political campaign by
preparing summaries of her prior judicial decisions, this evidence was
merely cumulative of Degener’s prior testimony that he performed various
other political tasks for Orie Melvin’s 2009 campaign, including (without
reference to this particular email in question) the preparation of various
summaries of her judicial decisions. Id. at 1499.
The final two emails at issue were to or from Pavlot. In an email
dated August 6, 2009 (Exhibit 14, Tab 9), Pavlot forwarded to Orie Melvin
another email concerning the taking of a family photograph and video that
were subsequently used in campaign literature. N.T., 1/28/2013, at 229.
In an email chain in September 2009 relating to a “gun bash” held by an
organization with ties to the National Rifle Association (Exhibit 14, Tab 17),
Pavlot suggested to Orie Melvin that 500 “poll cards” relating to her
candidacy could be distributed to attendees, and Orie Melvin responded by
inquiring whether Josh Dott (“Dott”), a junior member of Jane Orie’s
legislative staff, could attend the event to assist her in doing so. Id. at
14
Exhibit 35, Tab 5.
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246-48. These two emails, however, are merely cumulative of extensive
testimony by Pavlot regarding a wide range of political activities she
performed for the benefit of Orie Melvin’s 2009 political campaign, id. at
207-362, including providing assistance to Orie Melvin at various other
campaign events, e.g., id. at 212, 216, 263, solicitation at fundraisers, id.
at 238, 258-60, 268, obtaining endorsements from influential political
organizations, id. at 253, distributing poll cards, id. at 256, filming
campaign commercials, id. at 228, and sending Dott and other legislative
staff members to provide assistance at these activities, id. at 260, 267.
For these reasons, we conclude that the trial court’s failure to
suppress the 10 emails seized pursuant to the warrant for Orie Melvin’s
email accounts and their use at trial by the Commonwealth was harmless
error, either because the emails were not prejudicial to Orie Melvin or the
prejudice was de minimis, or because they were cumulative of other
properly admitted evidence. Moreover, to the extent that these emails tend
to prove that Orie Melvin diverted the services of members of her judicial
staff and Jane Orie’s legislative staff for the benefit of her 2009 political
campaign, we note that the Commonwealth introduced into evidence an
overwhelming quantum of other uncontradicted evidence, from numerous
other witnesses and a large volume of other exhibits unrelated to the 10
emails in question, that likewise demonstrated Orie Melvin’s diversion of
services. Thus, the prejudicial effect of these 10 emails is insignificant by
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comparison and in our view could not have contributed to the verdict. As a
result, no relief is due on Orie Melvin’s third issue on appeal.
C. Recusal of the Entire Allegheny County Bench
For her fourth issue on appeal, Orie Melvin contends that the trial
court erred in denying her motion for recusal of the members of the
Allegheny County bench in favor of an out-of-county trial judge. In a ruling
at the time of the preliminary hearing, Orie Melvin moved for the recusal of
all members of the Allegheny County bench and requested the assignment
of a trial judge from another judicial district to preside over all future
proceedings pursuant to Pennsylvania Rule of Judicial Administration 701C.
The trial court denied the motion, stating that it would be improper to
recuse all of the members of the Allegheny County bench, as the decision
regarding whether or not a jurist should recuse is a decision that only the
individual jurist can make. Trial Court Opinion, 6/27/2012, at 4. Instead,
the trial court indicated that a request for recusal of the trial judge assigned
to Orie Melvin’s case should be directed to that jurist. Id. at 5.
On appeal, Orie Melvin takes issue with the trial court’s contention
that it is improper to recuse all members of a particular bench, citing to
Commonwealth ex rel. Armor v. Armor, 398 A.2d 173 (Pa. Super.
1978) (en banc). In Armor, an en banc panel of this Court ruled that in a
case where a member of the Montgomery County bench was the spouse of
a party to a child support matter, no member of the Montgomery County
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bench could preside over the case. Id. at 356. Specifically, this Court
ruled that although the record contained no evidence of any bias, prejudice
or unfairness on the part of any member of the local bench, “it would be
contrary to the appearance of integrity and independence of the judiciary”
and would “not promote confidence in the integrity and impartiality of the
judiciary” to allow a fellow member of the Montgomery County bar to
preside over the case. Id. at 356-57.
Orie Melvin argues the same reasoning should apply in this case,
since she is herself a former member of the Allegheny County bench and
because an important witness in her case, her former Chief Law Clerk,
Sasinoski, is the wife of a member of the Allegheny County bench (the
Honorable Kevin G. Sasinoski). The trial court determined, however, that
Orie Melvin had not demonstrated the sort of direct conflict that clouded the
appearance of impartiality and independence in Armor. Trial Court
Opinion, 6/27/2012, at 4-5. As the trial court noted, Orie Melvin left the
Allegheny County bench in 1997 and provided no good reasons as to why
any current members of that bench could not preside over the present case
with integrity and objectively. Id. Moreover, Armor involved support
payments to the judge’s spouse, and thus arguably the judge had a direct
financial interest in the outcome of the litigation. In this case, in significant
contrast, neither Sasinoski nor her husband, as non-parties, had any direct
interest in the outcome of Orie Melvin’s case. Id.
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Orie Melvin posits that having a direct interest in the outcome of the
case is not the correct test under Armor, and that instead the appropriate
inquiry is whether “the impartiality of a judge may reasonably be
questioned if he or she is assigned to preside over a case where the
defendant is a former member of the court and a key prosecution witness is
married to a sitting judge on the court.” Orie Melvin’s Brief at 40. We
disagree, as we do not read Armor to contemplate the recusal of an entire
bench under the circumstances presented here. Armor involved two key
facts, namely a current member of the bench with a direct financial interest
in the outcome of the case. Armor is thus inapposite to the present case,
as there are no relevant factual parallels. Orie Melvin’s tenure on the
Allegheny County bench ended in 1997, so she has no current relationship
as a colleague with any of its members. Moreover, neither Sasinoski nor
her husband has any direct interest (financial or otherwise) in the outcome
of Orie Melvin’s trial, and we do not believe that a witness’ spousal
relationship with a judge, without more, automatically requires the recusal
of an entire bench, as no appearance of impropriety necessarily arises from
that attenuated fact.
In general, our Supreme Court has advised that a motion for recusal
is not directed to an entire bench, and that decisions regarding recusal must
be decided by the jurist whose impartiality is being challenged. See, e.g.,
Commonwealth v. White, 734 A.2d 374, 384 (Pa. 1999).
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As a general rule, a motion for recusal is initially
directed to and decided by the jurist whose
impartiality is being challenged. In considering a
recusal request, the jurist must first make a
conscientious determination of his or her ability to
assess the case in an impartial manner, free of
personal bias or interest in the outcome. The jurist
must then consider whether his or her continued
involvement in the case creates an appearance of
impropriety and/or would tend to undermine public
confidence in the judiciary. This is a personal and
unreviewable decision that only the jurist can make.
… In reviewing a denial of a disqualification motion,
we recognize that our judges are honorable, fair and
competent.
Commonwealth v. Abu-Jamal, 720 A.2d 79, 89 (Pa.) (citations omitted),
cert. denied, 528 U.S. 810 (1998). “It is the burden of the party requesting
recusal to produce evidence establishing bias, prejudice or unfairness which
raises a substantial doubt as to the jurist's ability to preside impartially.”
Id.
In its ruling at the time of the preliminary hearing, the trial court,
citing to Abu-Jamal, properly advised that “[w]hether the judge ultimately
assigned to this case … should recuse, is a matter that can only be
addressed by that judge.” Trial Court Opinion, 6/27/2012, at 5. Orie
Melvin did not, however, move for the recusal of the trial judge assigned to
the trial of her case, the Honorable Lester G. Nauhaus, and at no time
offered any evidence to establish that Judge Nauhaus could not preside over
her case without bias, prejudice, or unfairness. As a result, no relief is due
on this issue.
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D. Statute of Limitations
For her fifth issue on appeal, Orie Melvin contends that her
convictions for crimes committed in 2003 were barred by the statute of
limitations, and that the trial court erred in ruling that 42 Pa.C.S.A. §
5552(c)(2) extended the limitations period for her crimes. Orie Melvin
argues that section 5552(c)(2) extends the limitations period only for a
“public officer or employee” and that judges cannot be so designated. Orie
Melvin insists that judges are “judicial officers,” as that term is defined in 42
Pa.C.S.A. § 102, and thus section 5552(c)(2) does not apply in her
circumstance.
Orie Melvin raises an issue of statutory interpretation. "In examining
this determination of statutory interpretation, our scope of review is
plenary, as it is with any review of questions of law." Joseph F. Cappelli
& Sons, Inc. v. Keystone Custom Homes, Inc., 815 A.2d 643, 645 (Pa.
Super. 2003) (quoting Phillips v. A-Best Prods. Co., 665 A.2d 1167, 1170
(Pa. 1995)). When asked to construe a statute, "we are guided by the
principles set out in the Statutory Construction Act, 1 P.S. §§ 1501-1991."
Centolanza v. Lehigh Valley Dairies, Inc., 658 A.2d 336, 339 (Pa.
1995). Moreover, [t]he object of all statutory interpretation is to ascertain
and effectuate the intention of the General Assembly. 1 P.S. § 1921(a);
see also Carrozza v. Greenbaum, 866 A.2d 369, 384 (Pa. Super. 2004),
affirmed, 916 A.2d 553 (Pa. 2007).
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Section 5552(c)(2) provides as follows:
(c) Exceptions.--If the period prescribed in
subsection (a), (b) or (b.1) has expired, a
prosecution may nevertheless be commenced for:
(2) Any offense committed by a public
officer or employee in the course of or in
connection with his office or
employment at any time when the
defendant is in public office or
employment or within five years
thereafter, but in no case shall this
paragraph extend the period of
limitation otherwise applicable by more
than eight years.
42 Pa.C.S.A. § 5552(c)(2). 42 Pa.C.S.A. § 102 defines “judicial officer” as
“[j]udges, magisterial district judges and appointive judicial officers.”
42 Pa.C.S.A. § 102. The phrase “public officer or employee” does not
appear to be defined anywhere in Title 42.15
15
The trial court applied the definition of “public official” in section 1102 of
the Pennsylvania Ethics Act, 65 Pa.C.S.A. § 1102, when interpreting section
5552(c)(2). We disagree that this definition is applicable here for two
reasons. First, our Supreme Court has ruled that the Ethics Act does not
apply to judges. Kremer, 469 A.2d at 595-96. Second, the language of
the Ethics Act specifically states that its definitions apply only to the terms
in the Ethics Act itself. 65 Pa.C.S.A. § 1102 (“[t]he following words and
phrases when used in this chapter shall have … the meanings given to them
in this section …).
We likewise disagree with the trial court’s reliance on Commonwealth v.
O’Kicki, 597 A.2d 152 (Pa. Super.), appeal denied, 626 A.2d 1156 (Pa.
1991). The issue of whether a judge is a “public officer or employee” was
never raised in O’Kicki and thus our decision in that case provides no
binding authority in the present circumstance.
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When interpreting a statute, the Statutory Construction Act dictates
that we must give plain meaning to the words therein. See 1 Pa.C.S.A. §§
1901, 1903. “Absent a definition in the statute, statutes are presumed to
employ words in their popular and plain everyday sense, and the popular
meaning of such words must prevail.” Centolanza, 658 A.2d at 340 (citing
Harris-Walsh, Inc. v. Borough of Dickson City, 216 A.2d 329 (Pa.
1966)). In this regard, our Court, guided by our Supreme Court, has held
that “dictionary definitions offer adequate direction for statutory
interpretation consistent with the Statutory Construction Act.” Zator v.
Coachi, 939 A.2d 349, 353 (Pa. Super. 2007), appeal denied, 961 A.2d 859
(Pa. 2008); Centolanza, 658 A.2d at 340 (relying on Webster’s Ninth New
Collegiate Dictionary to interpret an undefined statutory phrase). Black’s
Law Dictionary defines “Public Official” as “[o]ne who holds or is invested
with a public office; a person elected or appointed to carry out some portion
of a government’s sovereign powers.” BLACK’S LAW DICTIONARY 1119 (8th ed.
2004).
Employing the popular and plain everyday sense of the words, the
phrase “public officer” refers to someone who holds a public office (either by
election or appointment) or is otherwise entrusted with carrying out
functions for the Commonwealth. The intent of the legislature in enacting
section 5552(c)(2) was to extend the statute of limitations for criminal
offenses for this subset of individuals in recognition of the unique positions
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that they hold.16 As such, in our view, the legislature intended for judges,
most of whom are elected and all of whom hold respected public offices and
carry out the power of the judicial branch of government, to be included
within the ambit of section 5552(c)(2).17 Accordingly, no relief is due on
this issue.
E. Prosecutorial Misconduct
For her sixth issue on appeal, Orie Melvin maintains that the trial
court erred in not dismissing the charges against her based upon an
egregious instance of prosecutorial misconduct relating to an exhibit
introduced during the testimony of Sasinoski. The trial court summarized
the relevant factual background of the incident as follows:
During the direct testimony of [Sasinoski], the
Commonwealth entered into evidence without
objection Exhibit 32, tab #19. (Transcript of Trial
from January 24, 2013 through February 21, 2013
(hereinafter referred to as “TT”) at 1180). This
exhibit was a one-page handwritten document
stating ‘Lisa Do you have proposed answers for
Questions 3, 8, & 10? Can I have this Monday.”.
(TT at 1181). [Sasinoski] testified the document
was hand-written by [Orie Melvin], and she was
being asked to answer questions 3, 8, & 10 on a
16
While it is true that Orie Melvin also meets the definition of “judicial
officer” under 42 Pa.C.S.A. § 102, she offers no good reason why the
phrases “judicial officer” and “public officer” are mutually exclusive of each
other. For the reasons explained herein, under section 5552(c)(2), judges
are both “judicial officers” and “public officers.”
17
Without specifically relying on this fact in reaching our conclusion, we
note that judicial officers in Pennsylvania receive W-2 statements reporting
salaries to the federal government as employees of the Commonwealth.
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political questionnaire. [Sasinoski] was asked, ‘That
would be an endorsement questionnaire of a special
interest group?’ and she relied ‘Yes’. (TT at 1181).
The Commonwealth then went on to ask questions
about the next exhibit.
On cross-examination, [Sasinoski] was asked about
a letter containing a page with eleven questions that
at some point had been attached to the single
handwritten document she had testified about on
direct examination (Commonwealth Exhibit 32 tab
#19). [Sasinoski] replied that she had not seen the
eleven-question document before. [TT at 1201-
1203].
The next court day, [Orie Melvin] filed a Defense
Motion to Dismiss Criminal Charges Due to
Prosecutorial Misconduct. The basis for the motion
was that the testimony of [Sasinoski] was
erroneous. The document she had testified about,
Commonwealth Exhibit 32 tab #19, was actually
written in 1998 and attached to a letter discussing
an educational event at which [Orie Melvin] was a
panel member. The five-page document was
admitted into evidence as Defendant’s Exhibit H.
The 1998 letter included eleven questions labeled
Proposed Questions for Professional Development
Roundtable. [Orie Melvin’s] handwritten note was
from 1998 and had requested information for a legal
education event, not a political endorsement
questionnaire, as [Sasinoski] had incorrectly
testified to on direct examination.
Trial Court Opinion, 9/12/2013, at 9-10. After hearing oral argument on
the motion to dismiss, the trial court denied the motion, ruling that the
prosecutor was not guilty of intentional misconduct and had instead made a
“mistake.” N.T., 2/1/2013, at 1237.
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“Our standard of review for a claim of prosecutorial misconduct is
limited to ‘whether the trial court abused its discretion.’” Commonwealth
v. Harris, 884 A.2d 920, 927 (Pa. Super. 2005) (quoting Commonwealth
v. DeJesus, 787 A.2d 394, 407 (Pa. 2001), cert. denied, 537 U.S. 1028
441 (2002)), appeal denied, 928 A.2d 1289 (Pa. 2007); Commonwealth
v. Culver, 51 A.3d 866, 871 (Pa. Super. 2012). “It is within the discretion
of the trial court to determine whether a defendant has been prejudiced by
misconduct or impropriety to the extent that a mistrial is warranted.”
Commonwealth v. Baez, 720 A.2d 711, 729 (Pa. 1998), cert. denied, 528
U.S. 827 (1999).
The Pennsylvania Supreme Court has stated that
‘[t]he essence of a finding of prosecutorial
misconduct is that the prosecutor, a person who
holds a unique position of trust in our society, has
abused that trust in order to prejudice and
deliberately mislead [the factfinder].”
Commonwealth v. Pierce, 645 A.2d 189, 197 (Pa.
1994). … Prosecutorial misconduct will justify a new
trial where the unavoidable effect of the conduct or
language was to prejudice the factfinder to the
extent that the factfinder was rendered incapable of
fairly weighing the evidence and entering an
objective verdict. If the prosecutorial misconduct
contributed to the verdict, it will be deemed
prejudicial and a new trial will be required.
Commonwealth v. Francis, 665 A.2d 821, 824 (Pa. Super. 1995) (some
internal citations omitted). More recently, our Supreme Court opined on
the meaning of the phrase, “prosecutorial misconduct,” stating:
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The phrase ‘prosecutorial misconduct’ has been so
abused as to lose any particular meaning. The
claim either sounds in a specific constitutional
provision that the prosecutor allegedly violated or,
more frequently, like most trial issues, it implicates
the narrow review available under Fourteenth
Amendment due process. See Greer v. Miller, 483
U.S. 756, 765 (1987) (‘To constitute a due process
violation, the prosecutorial misconduct must be of
sufficient significance to result in the denial of the
defendant's right to a fair trial.’) (internal quotation
marks omitted); Donnelly v. DeChristoforo, 416
U.S. 637, 643 (1974) (“When specific guarantees of
the Bill of Rights are involved, this Court has taken
special care to assure that prosecutorial conduct in
no way impermissibly infringes them.”). However,
“[t]he Due Process Clause is not a code of ethics for
prosecutors; its concern is with the manner in which
persons are deprived of their liberty.” Mabry v.
Johnson, 467 U.S. 504, 511 (1984). The
touchstone is the fairness of the trial, not the
culpability of the prosecutor. Smith v. Phillips,
455 U.S. 209, 219 (1982).
Commonwealth v. Cox, 983 A.2d 666, 685 (Pa. 2009).
Given this authority, we focus not on the culpability of the prosecutor
but rather on whether his actions deprived Orie Melvin of a fair trial by
prejudicially rendering the jury incapable of fairly weighing the evidence
and entering an objective verdict. Based upon our review of the certified
record, we conclude that the trial court did not err in denying Orie Melvin’s
motion to dismiss. We do so for two reasons. First, the prejudice to Orie
Melvin was minimal, as three other witnesses testified that law clerks were
required to fill out political questionnaires. N.T., 2/5/2013, at 1380
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(Creenan); 1493-94 (Degener); 1629 (Katherine Squires, hereinafter,
“Squires”).
Second, the trial court took appropriate steps to reduce any prejudice
to Orie Melvin. During Sasinoski’s testimony before the jury, the trial court
questioned Sasinoski directly and made the jury aware of the issues with
respect to the prior exhibit:
[THE COURT]: Your testimony was inaccurate.
[SASINOSKI]: Oh, okay.
[THE COURT]: Okay. As a matter of fact, the
document that it was attached to was a four page
document from Buchanan Ingersoll, which is a
major law firm in the City of Pittsburgh. They were
doing a continuing legal education seminar. The
Questions 3, 8, and 10 were proposed questions for
the judge; is that not accurate?
[SASINOSKI]: I don’t have a recollection of that.
[THE COURT]: Okay. This has been marked for
identification.
Ladies and gentlemen of the jury, you are to accept
this as the document, this is the original document
in which Tab 19 was, along with the attachment,
which was submitted to Ms. Sasinoski whenever it
was submitted. At the time that it was originally –
the District Attorney was in possession of these
additional pages, and they were not submitted to
you during Ms. Sasinoski’s testimony. Also be
aware of the fact that [the] defense was in
possession of these four pages. They knew they
were attached. All right.
There is a question as to how they were attached.
It is the defense’s belief that they were attached
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with a paper clip, or a staple, which is the way it is
now, but when they got it, it was attached with a
paper clip. And if you look at Tab 19, you will see
that there is a paper clip. For whatever that means
to you, take that.
N.T., 2/4/2013, at 1253-55.
Moreover, during its charge to the jury, the trial court specifically
advised the jury that Sasinoski had provided inaccurate testimony and gave
a “false in one, false in all” instruction:
One of the Commonwealth’s witnesses, Lisa
Sasinoski, gave inaccurate testimony concerning a
handwritten note which was marked and admitted
into evidence as Commonwealth Exhibit 32, Tab
#19. Ms. Sasinoski testified related [sic] to a
questionnaire from a special interest group when in
fact it related to a continuing legal education
seminar.
As has been pointed out by one of the attorneys,
there is a rule in the law which I learned as falsus in
uno, falsus in omnibus, which translated from Latin
means false in one, false in all. If you decide that a
witness deliberately testified falsely about a material
point, that is about a matter that could effect [sic]
the outcome of this trial, you may for that reason
alone choose to disbelieve the rest of his or her
testimony, but you are not required to do so. You
should consider not only the deliberate falsehood,
but also all other factors bearing on the witness’
credibility in deciding whether to believe other parts
of her testimony.
N.T., 2/15/2013, at 2806-08.
For these reasons, even to the extent that the prosecutor here
committed intentional misconduct (rather than a mere mistake, as the trial
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court concluded), it was not error to deny Orie Melvin’s motion to dismiss.
The prejudice to Orie Melvin was minimal and the trial court took
appropriate steps to clarify for the jury the precise nature of the issues
relating to the handwritten note associated with the questionnaire.18
Nothing in the certified record compels a conclusion that the jury was
rendered incapable of fairly weighing the evidence and entering an objective
verdict.
F. Propriety of Joinder of Case With Janine Orie’s Case
For her seventh issue on appeal, Orie Melvin claims that the trial court
erred in granting the Commonwealth’s motion to join her case with that of
her sister, Janine Orie. According to Orie Melvin, the trial court “failed to
recognize or appreciate the differences that required separate trials.” Orie
Melvin’s Brief at 57.
18
In her appellate brief, Orie Melvin details another instance of alleged
introduction of false evidence by the Commonwealth during the testimony
of Commonwealth witness Pavlot. Orie Melvin’s Brief at 55-56. The
certified record does not reflect that Orie Melvin moved for a mistrial or
other relief, however, and therefore, this issue is waived. See, e.g.,
Commonwealth v. Strunk, 953 A.2d 577, 579 (Pa. Super. 2008) (“Even
where a defendant objects to specific conduct, the failure to request a
remedy such as a mistrial or curative instruction is sufficient to constitute
waiver.”); Commonwealth v. Jones, 460 A.2d 739, 741 (Pa. 1983) (claim
of prosecutorial misconduct waived where defense counsel immediately
objected to the prosecutor's conduct but failed to request mistrial or
curative instructions); Commonwealth v. Chimenti, 524 A.2d 913, 921
(Pa. Super.) (issue was waived where defense counsel objected to a
question posed by the prosecutor but failed to ask the trial judge to do
anything further after the question had been answered), appeal denied, 533
A.2d 711 (Pa. 1987).
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Whether cases against different defendants should be consolidated for
trial “is within the sole discretion of the trial court and such discretion will
be reversed only for a manifest abuse of discretion or prejudice and clear
injustice to the defendant.” Commonwealth v. Boyle, 733 A.2d 633, 635
(Pa. Super. 1999). Procedurally, Rule 582 of the Pennsylvania Rules of
Criminal Procedure governs the joinder of separate criminal informations.
Rule 582 dictates, in pertinent part, as follows:
(1) Offenses charged in separate indictments or
informations may be tried together if:
(a) the evidence of each of the offenses
would be admissible in a separate trial
for the other and is capable of
separation by the jury so that there is
no danger of confusion; or
(b) the offenses charged are based on
the same act or transaction.
Pa.R.Crim.P 582(A). The severance of offenses is governed by Pa.R.Crim.P.
583, which states that the trial court “may order separate trials of offenses
or defendants, or provide other appropriate relief, if it appears that any
party may be prejudiced by offenses or defendants being tried together.”
Pa.R.Crim.P. 583.
Based upon these rules, our Supreme Court has formulated the
following test for deciding the merits of a motion to sever:
Where the defendant moves to sever offenses not
based on the same act or transaction that have
been consolidated in a single indictment or
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information, or opposes joinder of separate
indictments or informations, the court must []
determine: [1] whether the evidence of each of the
offenses would be admissible in a separate trial for
the other; [2] whether such evidence is capable of
separation by the jury so as to avoid danger of
confusion; and, if the answers to these inquiries are
in the affirmative, [3] whether the defendant will be
unduly prejudiced by the consolidation of offenses.
Commonwealth v. Collins, 703 A.2d 418, 422 (Pa. 1997) (quoting
Commonwealth v. Lark, 543 A.2d 491, 496–97 (Pa. 1988)), cert. denied,
525 U.S. 1015 (1998).
For Orie Melvin, the first part of the Collins test requires us to
determine whether the evidence introduced with respect to each of the
offenses would be admissible in a separate trial for the other. In a written
opinion, the trial court reviewed in considerable detail all of the charges
against both Orie Melvin and Janine Orie and concluded that joinder of the
two cases was appropriate. Trial Court Opinion, 8/23/2012, at 14. We
need not review the entirety of this analysis, however, since on appeal Orie
Melvin challenges just two of the trial court’s determinations.
First, Orie Melvin argues that the conspiracy allegations against her
and Janine Orie differ in multiple respects. At docket number CC
201010286, Janine Orie was charged with conspiring with Jane Orie and
Pavlot to use the services of Jane Orie’s legislative staff for the benefit of
Orie Melvin’s 2009 political campaign. In Count 4, Orie Melvin was charged
with conspiring with Jane Orie and Janine Orie to commit theft of services in
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connection with Orie Melvin’s 2003 and 2009 political campaigns, including
with respect to both Orie Melvin’s judicial staff and Jane Orie’s legislative
staff. Orie Melvin identifies three principle differences with these charges.
First, Orie Melvin was not alleged to have conspired with Pavlot at any time.
Second, the Janine Orie-Jane Orie-Pavlot conspiracy was only for the 2009
political campaign and did not also encompass the 2003 campaign. Third,
while Orie Melvin was charged with conspiring with Janine Orie to commit
theft of services, Janine Orie was not similarly charged with conspiring with
Orie Melvin to do so. Orie Melvin’s Brief at 58-59. According to Orie
Melvin, “[s]ince the alleged co-conspirators, relevant time period and object
of the charged conspiracies are not the same, the evidence was not
universally admissible.” Id. at 59.
Nothing in the Pennsylvania Rules of Criminal Procedure or the
Collins test, however, requires a perfect identity of the charges against two
defendants before their cases may be joined for trial. While Orie Melvin has
identified certain differences between the charges against the two
defendants, she has not established that any evidence introduced against
one of the defendants would not have been admissible in a separate trial for
the other. Orie Melvin was charged and convicted of conspiring with Janine
Orie and Jane Orie to commit theft of services with respect to both her own
judicial staff and Jane Orie’s legislative staff, including in both her 2003 and
2009 political campaigns. That made Orie Melvin and Janine Orie co-
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conspirators with respect to all of the theft of services charges, and thus
made admissible against each of them all of the acts of the other in
furtherance of the conspiracy. See, e.g., Commonwealth v. Cimrose,
478 A.2d 1318, 1324 (Pa. Super. 1984). While Orie Melvin was not charged
with conspiring with Pavlot, she was charged and convicted, both as a
principle and by and through two accomplices (Janine Orie and Jane Orie),
of diverting the use of Jane Orie’s legislative staff for the benefit of her
2009 political campaign – the object of the conspiracy involving Pavlot. And
while there was no reciprocal charge against Janine Orie for conspiring with
Orie Melvin to divert the use of Orie Melvin’s judicial staff for the benefit of
Orie Melvin’s 2003 and 2009 political campaigns, both were separately
charged and convicted of doing precisely that (Orie Melvin in Count 3 and
Janine Orie in Count 1 at CC 201115981).
Second, Orie Melvin contends that her case should not have been
joined with Janine Orie’s case because Janine Orie alone was charged and
convicted of tampering with and altering physical evidence, namely the
deletion of campaign-related computer files in 2009 and 2010 (Counts 3
and 4 at docket number CC 201115981). Orie Melvin’s Brief at 60. The
trial court rejected this argument, stating:
The alleged acts of [Janine Orie] in attempting to
destroy or conceal evidence of the conspiracy to
divert services is likely to be admissible against
[Orie Melvin] as those acts, if they are proven to
have occurred, were arguably made in furtherance
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of the common design of the alleged underlying
conspiracy. Certainly, the concealment of the
documents that would constitute direct evidence of
existence of the conspiracy would further the
common design of this conspiracy: the diversion of
the services of public employees to the private
interests of the defendants.
Trial Court Opinion, 8/23/2012, at 8-9.
We find no abuse of discretion in this analysis, as Janine’s acts of
tampering with evidence were in furtherance of her conspiracy with Orie
Melvin to divert public services to Orie Melvin’s benefit, thereby making
evidence of Janine’s acts admissible against Orie Melvin. Cimrose, 478
A.2d at 1324. In particular, we note that at trial, the Commonwealth
presented evidence to prove the existence of the underlying conspiracy
between Orie Melvin and Janine Orie, as the jury convicted Orie Melvin of
this charge (Count 4) and on appeal she does not challenge the sufficiency
of the evidence presented in support of this conviction. The cases cited by
Orie Melvin in this regard are inapposite, as they involved circumstances in
which severance should have been granted since one defendant faced
charges for which the other defendant clearly bore no potential
responsibility. See Commonwealth v. Brookins, 10 A.3d 1251, 1257
(Pa. Super. 2010) (“Significantly, Brookins's conduct appears to bear no
relationship to the planning and execution of the attempted kidnapping and
robbery with which Jordan, McKeiver, and Thompson were charged.”),
appeal denied, 22 A.3d 1033 (Pa. 2011); Commonwealth v. Jackson, 303
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A.2d 924, 925 (Pa. 1973) (“Since no evidence was given to link appellant to
the Oakmont robbery, the fact that the crimes were similar in nature does
not afford a sound basis for ordering their consolidation at trial.”).19
Moving to the second part of the Collins test, Orie Melvin claims that
the evidence relating to the different charges against her and Janine Orie
were not capable of separation because “the conspiracies charged in this
case are complex, involve different persons, relate to different time periods,
and involve contradictory allegations.” Orie Melvin’s Brief at 60. The trial
court disagreed, concluding that the jury was capable of separating the
evidence presented against each defendant and following any instructions
to consider evidence against only one defendant as necessary. Trial Court
Opinion, 8/23/2012, at 9. Orie Melvin has offered no convincing argument
to suggest that the trial court abused its discretion in this regard.
Finally, with respect to the third part of the Collins test, namely
prejudice to the defendant as a result of the joinder, we likewise conclude
that the trial court did not abuse its discretion in finding no such prejudice.
On appeal, Orie Melvin argues that the “risk was unavoidable that the jury
would cumulate the evidence of the various crimes and find guilt even
19
Orie Melvin’s citation to Commonwealth v. Boyd, 461 A.2d 1294 (Pa.
Super. 1983), likewise provides no support for her position. Boyd did not
involve the consolidation for trial of charges against separate defendants,
but rather raised the issue of whether a single defendant should have been
tried separately for wholly unrelated drug charges, as each charge involved
“a totally discrete set of facts.” Id. at 1295-96.
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though the evidence, when considered separately and applied to each
defendant individually, does not support a conviction.” Orie Melvin’s Brief
at 62. To the extent that the accumulation of evidence resulted in any
prejudice, it would have been to Janine Orie, as the overwhelming
preponderance of the evidence introduced at trial related to Orie Melvin’s
actions. Moreover, we note that on appeal, Orie Melvin has not identified
any specific testimony or exhibit introduced at trial against Janine Orie that
could not have been introduced at a separate trial against her alone, or
otherwise offered any basis for concluding that the introduction of any such
evidence (if it exists) resulted in any substantial prejudice to her.
G. Violation of Discovery Rights Regarding Jane Orie’s Computer
and Electronic Evidence
For her eighth issue on appeal, Orie Melvin asserts the trial court’s
denial of her request to inspect and examine original computer hard drives
and electronic evidence seized from the legislative office of Jane Orie
violated her rights to discovery under Rule 573(B)(1)(f) of the Pennsylvania
Rules of Criminal Procedure as secured in Brady v. Maryland, 373 U.S. 83
(1963), the Fifth and Sixth Amendments to the United States Constitution,
and Article I, Section 9 of the Pennsylvania Constitution. Orie Melvin’s Brief
at 65.
In our prior opinion in the Jane Orie case, we described the
subpoena used to obtain electronic evidence at the former state senator’s
legislative office as follows:
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The December 11, 2009 search warrant for Orie's
district office identified the items to be seized and
searched as ‘all computer hardware’; ‘software’;
‘documentation’ to access the computer systems
and passwords; and electronically stored data
referencing: Joan Orie Melvin or her 2009 political
campaign, and checks, campaign contributions,
thank you letters, and masthead for [Orie Melvin's]
2009 political campaign, and Orie's 2001–2009
elections or political campaigns, and checks,
campaign contributions, thank you letters, and
masthead for Orie’s 2001 through present political
campaigns. The accompanying 13–page affidavit of
probable cause detailed the results of the
Commonwealth’s investigation and described
interviews with numerous employees of Orie,
including [Joshua] Dott, Audrey Rasmussen, and
Pavlot, who each described political campaign-
related activities conducted in the office. Pavlot
stated she had done campaign work on legislative
time for [Jane Orie] since 2001, as well as campaign
work for Orie's sister, [Orie Melvin], in 2009, and
she described those duties. Pavlot and other
staffers indicated that legislative computers and
other office equipment were used for campaign-
related purposes.
Orie, 88 A.3d at 1005.
Jane Orie and the Senate Republican Caucus both asserted various
claims of privilege with respect to the seized materials, including attorney-
client privilege and the Speech and Debate Clause legislative privilege
(Article II, Section 15 of the Pennsylvania Constitution). On December 29,
2009, the Honorable John A. Zottola, the Supervising Judge of the Grand
Jury, appointed a Special Master (former Duquesne Law Professor Bruce
Antowiak), to review for privilege all of the evidence seized in connection
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with Orie-related warrants. Id. at 1004. According to Detective Graber, all
seized evidence was delivered (pursuant to a process established by Judge
Zottola) to the Special Master. After his review, the Special Master then
sent the evidence to Judge Zottola, who (after his own review) sent, inter
alia, “a redacted viewable version” of the seized hard drives back to the
District Attorney’s office. Id. at 1005 n.23; N.T., 12/13/2010, at 77-78. In
Orie, we concluded that this process ensured that all of the seized evidence
was reviewed by the Special Master and Judge Zottola before any of it was
turned over to the District Attorney’s office, and that the purpose of the
process was to guarantee that the District Attorney’s office “had access only
to non-privileged documents.” Orie, 88 A.3d at 1004, 1011.
In April of 2010, the Senate Republican Caucus obtained forensic
images of the hard drives seized from Jane Orie’s office. N.T., 12/14/2010,
at 269. On October 29, 2012, the trial court granted Orie Melvin’s motion
and directed the Senate Republican Caucus to make available to Orie Melvin
“all original electronic evidence which, in whole or in part, was examined or
searched in response to requests made by or subpoenas served by the
Allegheny County District Attorney’s Office.” Trial Court Order, 10/29/2012,
at 1. On November 7, 2012, after receipt of a motion for reconsideration
filed by the Senate Republican Caucus, the trial court vacated its prior order
and referred the matter to Judge Zottola. On two subsequent occasions,
Judge Zottola denied requests by Orie Melvin for the original hard drives.
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N.T., 12/21/2012, at 51-52 (“What it does is eliminate the safeguards that
the Court put in place with respect to privileged information.”); N.T.,
1/11/2013, at 18-19.
In Brady, the United States Supreme Court held that “the
suppression by the prosecution of evidence favorable to an accused upon
request violates due process where the evidence is material either to guilt
or to punishment irrespective of the good faith or bad faith of the
prosecution.” Brady, 373 U.S. at 87. A Brady violation occurs when: (1)
the prosecutor has suppressed evidence; (2) the evidence, whether
exculpatory or impeaching, is helpful to the defendant; and (3) the
suppression prejudiced the defendant. Commonwealth v. Paddy, 800
A.2d 294, 305 (Pa. 2002).
Rule 573 of the Pennsylvania Rules of Criminal Procedure was
promulgated in response to the dictates of Brady. Commonwealth v.
Green, 640 A.2d 1242, 1246 (Pa. 1994). Rule 573 provides, in relevant
part, as follows:
Rule 573. Pretrial Discovery and Inspection
* * *
(B) Disclosure by the Commonwealth.
(1) Mandatory. In all court cases, on request by the
defendant, and subject to any protective order
which the Commonwealth might obtain under this
rule, the Commonwealth shall disclose to the
defendant's attorney all of the following requested
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items or information, provided they are material to
the instant case. The Commonwealth shall, when
applicable, permit the defendant's attorney to
inspect and copy or photograph such items.
(a) Any evidence favorable to the
accused that is material either to guilt or
to punishment, and is within the
possession or control of the attorney for
the Commonwealth;
* * *
(f) any tangible objects, including
documents, photographs, fingerprints,
or other tangible evidence.
Pa.R.Crim.P. 573(B). Upon a finding of violation of Rule 573, the trial court
“may order such party to permit discovery or inspection, may grant a
continuance, or may prohibit such party from introducing evidence not
disclosed, other than testimony of the defendant, or it may enter such other
order as it deems just under the circumstances.” Pa.R.Crim.P. 573(E).
In this case, Orie Melvin does not deny that she received all of the
evidence obtained by the Commonwealth after the privilege reviews by the
Special Master and Judge Zottola. Instead, Orie Melvin argues that
pursuant to Rule 573(B)(1)(f), she had a right to inspect and examine the
original computer equipment seized from Jane Orie’s legislative office. Orie
Melvin’s Brief at 63. She further contends that this is a matter of
fundamental fairness, as “the Commonwealth was permitted to search the
computer equipment for potentially relevant information and was permitted
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to introduce evidence from that equipment at trial but Orie Melvin was
denied the same opportunity.” Id. at 65.
We disagree for several reasons. First, Orie Melvin has not cited to
any evidence in the certified record to support her claim that the
Commonwealth had any opportunity to search the original computer
equipment seized from Jane Orie’s office. As set forth hereinabove, the
District Attorney’s office had no access to the original computer equipment
or other evidence seized from Jane Orie’s office, as it was within the
exclusive control of Judge Zottola and the Special Master. Both the District
Attorney and Orie Melvin received the same access to the same non-
privileged evidence forthcoming after the privilege reviews. In her
appellate brief, Orie Melvin has not identified for this Court any evidence the
Commonwealth introduced at trial obtained from Jane Orie’s office to which
she was denied access (either by the trial court, Judge Zottola, or the
Commonwealth).
Second, Brady and Rule 573 set forth the Commonwealth’s
obligations to provide discovery materials that are within its possession to
the defense. See Pa.R.Crim.P. 573(B)(1) (“the Commonwealth shall
disclose to the defendant’s attorney”); Commonwealth v. Collins, 957
A.2d 237, 253 (Pa. 2008) (the Commonwealth does not violate disclosure
rules when it fails to disclose to the defense evidence that it does not
possess and of which it is unaware); see also Commonwealth v.
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Boczkowski, 846 A.2d 75, 97 (Pa. 2004) (citing Commonwealth v.
Gribble, 703 A.2d 426 (Pa. 1997), abrogated on other grounds by
Commonwealth v. Burke, 781 A.2d 1136 (Pa. 2001)). As a result of the
procedures established by Judge Zottola, the Commonwealth here did not
have custody or control of the original computer equipment sought by Orie
Melvin, and had no ability to produce it to Orie Melvin. As a result, Orie
Melvin has not established a violation of the Commonwealth’s obligations
under Brady or Rule 573.
Finally, no Brady violation occurs when the evidence is available to
the defense through non-governmental sources. Commonwealth v.
Carson, 913 A.2d 220, 244-45 (Pa. 2006), cert. denied, 552 U.S. 954
(2007); Commonwealth v. Morris, 822 A.2d 684, 696 (Pa. 2003);
Paddy, 800 A.2d at 305. The certified record in this case establishes that
the non-governmental entities asserting privilege claims with respect to the
evidence in question, including the Senate Republican Caucus and Jane
Orie, had duplicate copies of the hard drives removed from Jane Orie’s
office. N.T., 1/11/2013, at 18-19. Orie Melvin could presumably have
obtained the requested access to these sources from one or more of these
entities or individuals.
H. Violation of Discovery Rights Regarding Superior Court Computer
and Electronic Evidence
For her ninth issue on appeal, Orie Melvin maintains that the trial
court erred in denying her requests to examine the computers used by her
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judicial staff in the possession of the Superior Court. In response to
subpoenas issued by the Commonwealth, the Administrative Office of
Pennsylvania Courts (“AOPC”) performed searches on the Superior Court’s
computers using key search terms set forth in the subpoena. N.T.,
11/19/2012, at 8-9. The AOPC then provided the documents produced
from these searches to the Commonwealth and to Orie Melvin. Id. On
October 29, 2012, the trial court, at the request of, inter alia, Orie Melvin,
entered an order directing the AOPC to “make available for inspection and
examination by the computer forensic experts of the Defendants all original
electronic evidence which, in whole or in part, was examined or searched in
response to requests made by or subpoenas served by the Allegheny
County District Attorney’s Office.” Order, 10/20/2012, at 1.
In response, the AOPC moved for reconsideration, emphasizing that it
had not granted the Commonwealth physical access to the Superior Court’s
computers, and that instead it had merely run the searches delineated in
the Commonwealth’s subpoenas. Motion for Reconsideration of the Court’s
October 29, 2012 Order and for a Protective Order, 11/19/2012, at 2. The
AOPC objected to permitting Orie Melvin’s experts access to the Superior
Court’s computers on a variety of grounds, including that it exposed all of
the Superior Court’s judicial data -- much of which is confidential and
privileged -- to third parties, and indicated that no mechanism existed to
limit examination and inspection to information relevant to this case. Id. at
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4. The trial court heard oral argument on November 19, 2012, at which
time counsel for Orie Melvin renewed the request for access to the Superior
Court’s computers to “test the authenticity, the validity, and the accuracy of
the information that the AOPC produced to the Commonwealth which the
Commonwealth wishes to introduce into evidence against our client.” N.T.,
11/19/2012, at 6. The trial court refused to do so, vacating its October 29,
2012 order. The trial court permitted Orie Melvin to depose the AOPC
personnel who conducted the key word searches.
No Brady or Rule 573 issues are presented here, as Orie Melvin does
not suggest that the Commonwealth had possession or control of the
Superior Court’s computers. Accordingly, we review the trial court’s denial
of Orie Melvin’s discovery motion for an abuse of discretion.
Commonwealth v. Mendez, 74 A.3d 256, 260 (Pa. Super. 2013),
(“Generally, on review of an order granting or denying a discovery request,
an appellate court applies an abuse of discretion standard.”), appeal denied,
87 A.3d 319 (Pa. 2014). Here we find no abuse of discretion. Orie Melvin
offered no basis to dispute the AOPC’s contention that permitting access to
the Superior Court’s computers would provide unauthorized access to a
myriad of privileged and confidential documents, and offered no specific
procedures or methods that could have been employed to satisfy the
AOPC’s confidentiality and privilege concerns. Moreover, to the extent that
Orie Melvin sought evidence from the Superior Court’s computers that had
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not been produced by the AOPC in response to the Commonwealth’s
subpoenas, Orie Melvin could have issued her own subpoena to the AOPC
requesting the production of such information. The certified record does
not reflect that she ever did so.
I. Defects in the Preliminary Hearing
For her tenth issue on appeal, Orie Melvin claims that at the
preliminary hearing the Commonwealth failed to make out a prima facie
case to support the charges for theft of services, misapplication of
government property, or conspiracy to tamper with or fabricate evidence.
Orie Melvin’s Brief at 68-74. The purpose of a preliminary hearing is to
avoid the incarceration or trial of a defendant unless there is sufficient
evidence to establish that a crime was committed and a probability that the
defendant was connected therewith. See, e.g., Commonwealth v.
Jackson, 849 A.2d 1254, 1257 (Pa. Super. 2004). Once a defendant has
gone to trial and has been found guilty of the crime or crimes charged,
however, any defect in the preliminary hearing is rendered immaterial.
See, e.g., Commonwealth v. Sanchez, 82 A.3d 943, 984 (Pa. 2013).
Because Orie Melvin was convicted of the above-referenced crimes following
a trial on the merits, she is entitled to no relief on any alleged defects in the
rulings of the magisterial district judge at the preliminary hearing.
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J. Evidence of Productivity of Orie Melvin’s Judicial Chambers
For her eleventh issue on appeal, Orie Melvin argues the trial court
erred in refusing to permit her to admit into evidence reports relating to the
productivity of her judicial chambers in 2003 and 2009. Our standard of
review for a trial court's evidentiary rulings is narrow, as the admissibility of
evidence is within the discretion of the trial court and will be reversed only if
the trial court has abused its discretion. Commonwealth v. Hanford, 937
A.2d 1094, 1098 (Pa. Super. 2007), appeal denied, 956 A.2d 432 (Pa.
2008). An abuse of discretion is not merely an error of judgment, but is
rather the overriding or misapplication of the law, the exercise of judgment
that is manifestly unreasonable, or the result of bias, prejudice, ill will or
partiality, as shown by the evidence of record. Commonwealth v.
Mendez, 74 A.3d 256, 260 (Pa. Super. 2013), appeal denied, 87 A.3d 319
(Pa. 2014).
On February 8, 2013, Orie Melvin called Delores Bianco (“Bianco”),
the Deputy Director for the Superior Court, to testify on her behalf. Bianco
testified that she had brought with her monthly reports provided to the
judicial chambers of each Superior Court judge on a monthly basis, from
2003 through 2009. N.T., 2/8/2013, at 2148-49. These reports begin in
January of each year and cumulate the included information each month,
such that the December report shows the information for the full year. Id.
According to Bianco, these monthly reports show, inter alia, the number of
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cases assigned to, and completed by, each Superior Court judge, including
Orie Melvin. Id. On cross-examination and through questions posed by the
trial judge, Bianco indicated that the reports contain only “raw numbers,”
and provide no information about the nature or complexity of the cases, or
how long or short the memoranda or opinions deciding the cases may be.
Id. at 2153-53. Similarly, Bianco acknowledged that the reports made no
attempt to reflect the quality of the memorandum or opinion. Id. at 2154.
Prior to Bianco testifying about information in the reports specifically
relating to Orie Melvin or any other Superior Court judge, counsel for Orie
Melvin moved for the admission into evidence of the exhibits containing the
monthly reports. The trial court deferred ruling on the admissibility. Id. at
2161.
On February 12, 2013, the trial court ruled that these monthly
reports, and four charts summarizing their contents, were irrelevant and
thus not admissible. Id. at 2536.
On appeal, Orie Melvin contends that this evidence was relevant to
negate the Commonwealth’s accusation that she diverted judicial resources
to political activity in 2003 and 2009. As her counsel argued,
In this case, Judge, the determination of whether or
not the services were properly utilized by my client,
or whether they were improperly or illegally diverted
to an illegal exercise or non-judicial exercise is a
determination that has to be evaluated by the fact-
finder, the jury. That one measure, one measure,
there may be others, but one measure is most
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clearly what cases were decided, whether they were
decided on time, and whether there was that
productivity by the chambers. … That measure of
productivity indicates that the services are being
properly applied to the decisions of the cases before
the Court.
Id. at 2520-21, 2535. Counsel also asserted that the evidence bore
directly on the credibility of former members of her judicial staff who
testified that they spent a significant percentage of their workdays
performing political, rather than judicial, tasks:
That is the very point of the argument, Judge.
Sasinoski testifies, Squires testifies, Ms. Weibel[20]
comes in here and testifies, and they say that there
has been a theft, there has been a depreciation or a
taking from the workday. Three hours a day in
2003 by Squires. For god’s sake, the evidence of
the productivity of the offices defies what the
testimony – it’s a credibility challenge.
Id. at 2533.
For the reasons that follow, we find no error in the trial court’s
decision not to admit the proffered evidence because we agree that the
proffered evidence was not relevant. Evidence is relevant evidence if it
tends to make the existence of a material fact more or less probable than it
would be without the evidence. Pa.R.E. 401; Commonwealth v. Dillon,
925 A.2d 131, 136 (Pa. 2007).
20
Jackelyn Weibel is a detective in the Allegheny County District Attorney’s
office who testified as an expert in forensic accounting. N.T., 2/7/2013, at
2020. She testified as to the value of the services Orie Melvin allegedly
diverted to her own use. Id. at 2048 ($27,702.68 in 2003 and $5,773.03
in 2009).
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The trial court did not abuse its discretion in ruling that the monthly
reports were irrelevant to the charges against Orie Melvin, as we conclude
that her relevance arguments misconstrue the nature of the crime of theft
of services. To establish a theft of services under 18 Pa.C.S.A. § 3926(b),
the Commonwealth only had to establish that Orie Melvin utilized her
judicial staff for purposes other than judicial work. The only appropriate
inquiry under section 3926(b) is whether Orie Melvin required her judicial
staff to perform, for her personal benefit, non-judicial (i.e., political)
duties,21 and it is irrelevant that they also performed their judicial tasks.
The Commonwealth had no obligation to prove that the diversion of services
resulted in an inability to complete the judicial work for which they were
employed by the Commonwealth. As the trial court correctly observed,
“proof of no loss to the Commonwealth is not a defense to the charge of
theft of services by diversion of services.” Trial Court Opinion, 8/12/2013,
at 15.
In addition, the monthly reports provided only statistics on the output
of the entire chambers for the relevant time periods, and thus offer no
indication as to the productivity of any particular law clerk during that
period or in general. As such, they do not, as Orie Melvin now contends,
tend to contradict the testimony of a specific law clerk regarding the portion
21
As explained infra at 69-70, no judicial employee testified that he or she
performed political services at Orie Melvin’s direction on a volunteer basis.
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of his or her time that was spent on non-judicial tasks.22 In this regard, we
note that the monthly reports offered no insight into the productivity (or
lack thereof) of Squires or Janine Orie, who as secretaries had no direct
responsibility for researching or drafting the judicial decisions generated by
Orie Melvin’s chambers.
Finally, even to the extent that the monthly reports in question
provided some indication of the productivity of Orie Melvin’s Superior Court
chambers as a whole, the trial court retained broad discretion to exclude
the evidence as potentially misleading or confusing to the jury. See, e.g.,
Leahy v. McClain, 732 A.2d 619, 624 (Pa. Super.), appeal denied, 751
A.2d 192 (1999); Egelkamp v. Egelkamp, 524 A.2d 501, 504 (Pa. Super.
1987); Gallegor by Gallegor v. Felder, 478 A.2d 34, 38 (Pa. Super.
1984). Without a substantial quantum of additional information, the
monthly reports at issue here may have done more to mislead and confuse
the jury than to instruct it. For example, the monthly reports did not reflect
the number or complexity of the issues in the cases assigned to Orie Melvin
in any relevant time period, and similarly did not show how Orie Melvin’s
chambers managed its inventory of cases at specific points in time,
including, for instance, whether decisions on more complex and/or lengthy
cases were deferred until after elections in favor of simpler, more
22
For example, Degener testified that during election periods “the appeals
were still being turned out” because the law clerks “just worked hard” at
“getting it done.” N.T., 2/5/2013, at 1491.
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straightforward and routine cases. The monthly reports also set forth only
the number of cases circulated and filed during the relevant time periods,
but do not specify the length of the individual memoranda and opinions
produced or the complexity of the analysis involved in each such decision.
Without this additional foundational information, the monthly reports may
have presented a highly misleading representation of the productivity of
Orie Melvin’s judicial staff at any specific point in time, and thus the trial
court was within its discretion to exclude this evidence on this basis.
Because we conclude that the trial court did not abuse its discretion in
refusing to admit these monthly reports into evidence, no relief is due on
Orie Melvin’s eleventh issue on appeal.
K. Improper Comments by Trial Judge
For her twelfth issue on appeal, Orie Melvin contends that the trial
court deprived her of a fair trial by making the following communications to
the jury:
• Expressed personal disbelief that court employees
had no set or minimum work hours, N.T., 2/6/2013,
at 1719, and after stating ‘I don’t understand any of
this,’ proceeded to question the AOPC Human
Resource Director himself concerning this issue, id.
at 1729-30. Apparently dissatisfied with the
answers to his own questions, the court then said:
‘I didn’t clear anything up.’ Id. at 1733.
• Offered his personal opinion that time spent
performing political tasks was not de minimis and
the defense strategy of totaling minutes allegedly
spent on political tasks was not credible. N.T.,
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2/1/2013, at 1068-69 (‘It really is a
mischaracterization. It really is. I understand that
you are taking down two and three minutes, but
there is so much more being done. It’s a
mischaracterization.’).
• Offered his personal opinion that defense strategies
were not coherent or persuasive. (See, e.g., N.T.,
1/29/2013, at 429-30 (‘[T]o be perfectly honest, I
have no idea what you are trying to do.’); N.T.,
2/5/2013, at 1463 (‘I would really like to know
where you are going. This is supposed to be cross-
examination. Where are we going with this?’); Id.
at 1466 (‘I’m reluctant to tell any lawyer how to try
their case, but I need to know where you are going
with this.’).
• Improperly limited relevant cross-examination of
Pavlot concerning a pleading that was filed on her
behalf in federal court because the pleading was
signed by her lawyer, not Pavlot. N.T., 1/29/2013,
at 463-64.
• Assumed that the introduction of false evidence by
the prosecutor concerning the ‘Women in the
Profession’ materials was a mistake, N.T., 2/1/2013,
at 1237, and reinforced the notion of a mistake in a
later colloquy with defense counsel, N.T., 2/4/2013,
at 1276-77.
• Insisted that Sasinoski was ‘mistaken’ when she
falsely testified that Orie Melvin took a car
allowance from the Superior Court. N.T.,
2/12/2013, at 2504-08.
• Made inconsistent hearsay rulings that favored the
prosecution. For example, when the defense
objected to admission of a hearsay statement by a
former Senate staffer, the trial court ruled that the
testimony must be allowed in front of jury because
‘you don’t know it’s hearsay until you hear what it
is.’ N.T., 1/31/2013, at 890. Further, when the
Commonwealth sought to elicit testimony from a
former Senate staffer concerning advice that she
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received, the trial court allowed the testimony
because ‘somebody told her, it’s called state of
mind.’ N.T., 2/5/2013, at 1675. By contrast, the
trial court disallowed legitimate questioning of Judge
Joseph Del Sole concerning the basis for his
personnel actions concerning Lisa Sasinoski. N.T.,
2/7/2013, at 2102.
• Shut down questioning of the Commonwealth’s
expert concerning judicial staffers completing all of
their assigned work by ruling that the question ‘was
never asked,’ N.T., 2/7/2013, at 2071, when in fact
each judicial staffer was asked whether all judicial
work was completed. N.T., 2/1/2013, at 1215-16;
N.T., 2/5/2013, at 1586-87, 1591.
Orie Melvin’s Brief at 79-80.
Orie Melvin did not specifically raise any of these issues in her Rule
1925(b) concise statement of issues to be complained of on appeal, and
thus, they are waived. See Pa.R.A.P. 1925(b)(4)(vii); Commonwealth v.
Hairston, 84 A.3d 657, 672 (Pa. 2014). Moreover, they are waived for
lack of argument in Orie Melvin’s appellate brief. A judge’s remarks to
counsel during trial do not warrant reversal unless the remarks so prejudice
the jurors against the defendant that “it may reasonably be said [that the
remarks] deprived the defendant of a fair and impartial trial.”23
23
We also note that in its charge to the jury, the trial court advised as
follows:
I have not attempted to indicate my opinion
concerning the weight which should be given to any
of the evidence, or part of it. I do not want you to
think that I have. If during the course of the trial I
have asked any questions of the witnesses, you are
not to attach any more significance to those
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Commonwealth v. Jones, 912 A.2d 268, 287 (Pa. 2006) (citing
Commonwealth v. England, 375 A.2d 1292, 1300 (Pa. 1977)). In her
appellate brief, Orie Melvin fails to develop these claims by detailing the
circumstances and context of each trial court statement, or otherwise
explaining how each of these statement prejudiced her or deprived her of a
fair trial. Pa. R.A.P. 2119(a); Commonwealth v. Wilson, 825 A.2d 710,
715 (Pa. Super. Ct. 2003) (holding waiver results when appellant fails to
properly develop issue on appeal) (citing Commonwealth v. Ellis, 700
A.2d 948, 957 (Pa. Super. 1997), appeal denied, 727 A.2d 127 (Pa. 1998));
see also Commonwealth v. Miller, 721 A.2d 1121, 1124 (Pa. Super.
1998) (“We decline to become appellant’s counsel. When issues are not
properly raised and developed in briefs, when briefs are wholly inadequate
to present specific issues for review, a court will not consider the merits
thereof.”); Commonwealth v. Einhorn, 911 A.2d 960, 970 (Pa. Super.
2006), appeal denied, 920 A.2d 831 (Pa. 2007); Commonwealth v.
Levanduski, 907 A.2d 3, 29 (Pa. Super. 2006), appeal denied, 919 A.2d
955 (Pa 2007).
questions and answers than to any other questions
and answers. If during the trial I have exhibited
what you felt to be annoyance or displeasure
towards any witness or any lawyers, or I made any
comment or displayed any facial expressions, you
are not to assume that I am attempting to lead you
to render a particular verdict.
N.T., 2/15/2013, at 2810.
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L. Sufficiency of Evidence
For her thirteenth issue on appeal, Orie Melvin challenges the
sufficiency of the evidence to support her convictions for theft of services,
misapplication of entrusted property, and conspiracy to tamper with or
fabricate evidence. We apply the following standard of review when
considering a challenge to the sufficiency of the evidence:
The standard we apply in reviewing the sufficiency
of the evidence is whether viewing all the evidence
admitted at trial in the light most favorable to the
verdict winner, there is sufficient evidence to enable
the fact-finder to find every element of the crime
beyond a reasonable doubt. In applying the above
test, we may not weigh the evidence and substitute
our judgment for the fact-finder. In addition, we
note that the facts and circumstances established by
the Commonwealth need not preclude every
possibility of innocence. Any doubts regarding a
defendant's guilt may be resolved by the fact-finder
unless the evidence is so weak and inconclusive that
as a matter of law no probability of fact may be
drawn from the combined circumstances. The
Commonwealth may sustain its burden of proving
every element of the crime beyond a reasonable
doubt by means of wholly circumstantial evidence.
Moreover, in applying the above test, the entire
record must be evaluated and all evidence actually
received must be considered. Finally, the finder of
fact while passing upon the credibility of witnesses
and the weight of the evidence produced, is free to
believe all, part or none of the evidence.
Commonwealth v. Estepp, 17 A.3d 939, 943–44 (Pa. Super. 2011),
appeal dismissed, 54 A.3d 22 (Pa. 2012).
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1. Theft of Services
18 Pa.C.S.A. § 3926 of the Pennsylvania Criminal Code is entitled
“Theft of services.” Its subsection (b) provides as follows:
(b) Diversion of services.--A person is guilty of
theft if, having control over the disposition of
services of others to which he is not entitled, he
knowingly diverts such services to his own benefit
or to the benefit of another not entitled thereto.
18 Pa.C.S.A. § 3926(b). Subsection (c)(2) states that when the value of
the services diverted is more than $50, the crime will be graded in
accordance with 18 Pa.C.S.A. § 3903. 18 Pa.C.S.A. § 3926(c)(2). 18
Pa.C.S.A. § 3903(a.1) provides that a theft of services with a value in
excess of $2,000 constitutes a felony of the third degree. 18 Pa.C.S.A. §
3903(a.1).
With respect to her conviction under Count 1 for diversion of the
services of her judicial staff, Orie Melvin directs our attention to the trial
testimony of David Kutz (“Kutz”), AOPC’s Director of Human Resources,
who indicated that judges on the Superior Court have the authority to set
office policy for members of their judicial staff, including how many hours
the law clerks and secretaries work. N.T., 2/6/2013, at 1704-06. Kutz
further testified that law clerks and secretaries did not have to fill out time
sheets to get paid. Id. at 1727. Based upon this testimony, Orie Melvin
contends that she was “vested with complete discretion to direct the work
of her staff and secretaries” and that there was “no requirement that those
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employees devote any particular number of hours to their judicial
assignments.” Orie Melvin’s Brief at 82.
We cannot agree that Kutz’s testimony precluded a finding that Orie
Melvin diverted services within the meaning of subsection 3925(b). At
most, Kutz’s testimony established that Superior Court judges have the
discretion to set office policy and the number of hours per week that
employees are expected to work – in other words, to prescribe how and in
what manner the judicial functions of their office are carried out. This in
no way leads to a conclusion that Superior Court judges have any authority
to divert the services of judicial employees to their own personal
benefit.
No judicial employee testified that he or she performed political
services on a volunteer basis. For example, Sasinoski testified that she
performed political tasks for Orie Melvin’s campaign so that she could keep
her job, even though she knew that doing so was wrong. N.T., 2/1/2013,
at 1105. Degener also testified that he thought that doing political work
was wrong, but that Orie Melvin was his supervisor and he did not believe
that objecting to doing the work would “stop it.” Id. at 1491, 1497.
Squires testified that the political work she did was outside her “judicially
required responsibilities,” but that she performed the political tasks
assigned to her because “it was given to me by [Janine Orie] to complete
during my workday.” Id. at 1605-06.
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With respect to her conviction under Count 3 for diversion of the
services of Jane Orie’s legislative staff, Orie Melvin claims that the
Commonwealth offered no evidence to prove that she had control over the
services of those employees, and that no legislative employee testified that
Orie Melvin directed them to perform any political work on her behalf. Orie
Melvin’s Brief at 83.
In rejecting this argument, the trial court noted that numerous
members of Jane Orie’s legislative staff testified that they performed a
substantial quantity of political work on Orie Melvin’s political campaigns.
Trial Court Opinion, 9/12/2013, at 22. The certified record supports this
finding. In this regard, Pavlot testified that that she received numerous
directives to perform political activity from both Jane Orie and Janine Orie,
and that Jane Orie specifically advised her any order she received from
either Janine Orie and/or Orie Melvin was to be treated as an order directly
from her:
Q. Why would you take orders from either
[Janine Orie or Orie Melvin]?
A. Because [Jane Orie] told me, she told me
from the beginning, she said, look, if either of
my sisters, Janine or Joan, ever give you a
directive or a request, whatever it might be,
you need to follow that as though I were
telling you to do that.
Q. As a practical matter, did you receive requests
from either [Janine Orie or Orie Melvin] that
were political or campaign related?
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A. Yes sir, I did.
N.T., 1/28/2013, at 199.
Furthermore, on appeal Orie Melvin does not challenge the sufficiency
of the evidence in support of her conviction under Count 4 for conspiring
with Jane Orie and Janine Orie to divert the services of Jane Orie’s
legislative staff to her political campaigns. Accordingly, even if Orie Melvin
did not herself direct members of Jane Orie’s legislative staff to perform
political tasks on her behalf, she is nevertheless responsible for all of the
acts of both Janine Orie and Jane Orie in doing so. See, e.g.,
Commonwealth v. Murphy, 795 A.2d 1025, 1038 (Pa. Super. 2002)
(“Even if the conspirator did not act as a principal in committing the
underlying crime, he is still criminally liable for the actions of his co-
conspirators in furtherance of the conspiracy.”), affirmed, 844 A.2d 1228
(Pa. 2004).
2. Misapplication of Entrusted Property
Orie Melvin next challenges the sufficiency of the evidence to support
her conviction under Count 5 for misapplication of entrusted property. 18
Pa.C.S.A. § 4113(a), entitled “Misapplication of entrusted property and
property of government or financial institution,” provides as follows:
(a) Offense defined.--A person commits an offense
if he applies or disposes of property that has been
entrusted to him as a fiduciary, or property of the
government or of a financial institution, in a manner
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which he knows is unlawful and involves substantial
risk of loss or detriment to the owner of the
property or to a person for whose benefit the
property was entrusted.
18 Pa.C.S.A. § 4113(a). Subsection (b) provides that the offense is a
misdemeanor of the second degree if the amount involved exceeds $50,
and a misdemeanor of the third degree if the amount involved does not
exceed $50.24 18 Pa.C.S.A. § 4113(b).
The trial court found that the Commonwealth had introduced sufficient
evidence to support this conviction based upon testimony that Orie Melvin,
either directly or through others at her direction (including Janine Orie), had
used Superior Court office facilities and office equipment for political
campaign activities. Trial Court Opinion, 9/12/2013, at 24-25. On appeal,
Orie Melvin contends that the Commonwealth did not introduce any
evidence to prove that she applied or disposed of entrusted property “in a
manner which was unlawful and involved substantial risk of loss or
detriment to the owner of the property.” Orie Melvin’s Brief at 84.
We conclude that this issue has not been preserved for appellate
review. In her statement of errors complained of on appeal, Orie Melvin
24
Orie Melvin’s conviction under this provision was graded as a second-
degree felony, despite the apparent absence of any evidence of record that
the value of the amount involved exceeded $50. Order of Sentence,
5/7/2013, at 2 (identifying the conviction as an “M2”). Because Orie Melvin
has not raised this issue on appeal, however, it is waived. See, e.g.,
Commonwealth v. Smith, 17 A.3d 873, 903 (Pa. 2011), cert. denied, 133
S. Ct. 24 (U.S. 2012).
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states only that there was insufficient evidence to support her conviction
under subsection 4113(a), but does not identify the specific element of the
offense for which insufficient evidence was allegedly presented. As a result,
the trial court did not address in its Rule 1925(a) written opinion the
specific issue now presented. For these reasons, we find the issue to be
waived.
If Appellant wants to preserve a claim that the
evidence was insufficient, then the 1925(b)
statement needs to specify the element or elements
upon which the evidence was insufficient. This Court
can then analyze the element or elements on
appeal. The instant 1925(b) statement simply does
not specify the allegedly unproven elements.
Therefore, the sufficiency issue is waived.
Commonwealth v. Williams, 959 A.2d 1252, 1257 (Pa. Super. 2008).
Although the Commonwealth did not object to this defect in Orie Melvin’s
Rule 1925(b) concise statement, we observed in Williams that such a
failure is of “no moment, because we apply Pa.R.A.P. 1925(b) in a
predictable, uniform fashion, not in a selective manner dependent on an
appellee’s argument ….” Id.
3. Conspiracy to Tamper With or Fabricate Evidence
Finally, Orie Melvin claims that the Commonwealth did not introduce
sufficient evidence to support her conviction under Count 7 for conspiracy to
tamper with or fabricate evidence. To sustain a conviction for criminal
conspiracy, the Commonwealth must establish that the defendant (1)
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entered into an agreement to commit or aid in an unlawful act with another
person or persons, (2) with a shared criminal intent and (3) an overt act
was done in furtherance of the conspiracy. Commonwealth v. Hennigan,
753 A.2d 245, 253 (Pa. Super. 2000). “This overt act need not be
committed by the defendant; it need only be committed by a co-
conspirator.” Id. With respect to the agreement element, we have
explained:
The essence of a criminal conspiracy is a common
understanding, no matter how it came into being,
that a particular criminal objective be accomplished.
Therefore, a conviction for conspiracy requires proof
of the existence of a shared criminal intent. An
explicit or formal agreement to commit crimes can
seldom, if ever, be proved and it need not be, for
proof of a criminal partnership is almost invariably
extracted from the circumstances that attend its
activities. Thus, a conspiracy may be inferred
where it is demonstrated that the relation, conduct,
or circumstances of the parties, and the overt acts
of the co-conspirators sufficiently prove the
formation of a criminal confederation. The conduct
of the parties and the circumstances surrounding
their conduct may create a web of evidence linking
the accused to the alleged conspiracy beyond a
reasonable doubt.
Commonwealth v. McCall, 911 A.2d 992, 996-97 (Pa. Super. 2006)
(quoting Commonwealth v. Johnson, 719 A.2d 778, 784–85 (Pa. Super.
1998) (en banc)).
Orie Melvin argues that there was no proof of either an agreement
with Pavlot and/or Jane Orie to tamper with evidence, or that she intended
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to facilitate or promote the crime of tampering. Orie Melvin’s Brief at 85.
We disagree. Pavlot testified that after she and others in Jane Orie’s
legislative office became aware that a student intern (Jennifer Knapp Rioja)
had reported improprieties to the Allegheny County District Attorney’s
office, she and Dott removed two boxes of documents from the office file
drawers. N.T., 1/29/2013, at 330. When they were removing the boxes
from the office, she thought she saw flashes from a camera, and
immediately contacted Jane Orie to report that she believed someone had
taken pictures of the removal of the boxes. Id. at 331. Pavlot testified that
she took the boxes to her basement and planned to give them to her
attorney, but before she could do so she received a telephone call from
Jane Orie and Orie Melvin, which she described as follows:
I received a phone call from Jane Orie and she said,
Jamie, this is Jane, I have [Orie Melvin] on the
phone. [Orie Melvin] said, hi, Jamie. I said, hi,
Judge. And they said to me, both of them had
identified themselves and said to me, Jamie, what’s
in those boxes. And I said, well, there are a
number of things in the boxes. What are in the
files? I said it appears to be some expense reports,
it appears to be some contributors lists, looks like
some political literature is in there, some other
miscellaneous things are in there.
And [Jane Orie] said, Jamie, anything that’s political
of mine, I want you to pull those files out of those
boxes. And [Orie Melvin] said, Jamie, anything
political of mine, I want you to pull them out of
those boxes. And I said, okay. But I didn’t do it.
Id. at 333-34.
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Viewing Pavlot’s testimony in the light most favorable to the
Commonwealth as the verdict winner, as our standard of review requires,
there is sufficient evidence to support a conspiracy between Orie Melvin,
Jane Orie, and Pavlot to tamper with evidence. Orie Melvin argues that
phone records do not establish that such a telephone call was ever made,
but it is not for this Court to pass upon Pavlot’s credibility. Estepp, 17 A.3d
at 943–44. An argument regarding the credibility of a witness’s testimony
“goes to the weight of the evidence, not the sufficiency of the evidence.”
Commonwealth v. Gibbs, 981 A.2d 274, 281-82 (Pa. Super. 2009),
appeal denied, 3 A.3d 670 (Pa. 2010). Orie Melvin has not asserted a
weight of the evidence claim.
M. Accomplice Liability Jury Instructions After Commencement of
Jury Deliberations
For her fourteenth issue on appeal, Orie Melvin claims that the trial
court erred in instructing the jury on the topic of accomplice liability after
closing arguments had been completed and the jury had begun its
deliberations. Orie Melvin’s Brief a 85. For the reasons that follow, we
conclude that the trial court’s supplemental instruction to the jury violated
Rule 647(A) of the Pennsylvania Rules of Criminal Procedure. We further
conclude, however, that Orie Melvin has not demonstrated actual prejudice
resulting from this violation to be entitled to any relief on appeal.
On February 14, 2013, the trial court conducted a charging
conference, at which time it provided the parties with a draft of its proposed
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charge to the jury and ruled on various requests for additional instructions.
N.T., 2/14/2013, at 2679-2703. During this charging conference, the
Commonwealth did not request a charge on “accomplice liability,” ask that
the term be defined, or otherwise object to the absence of a charge or
definition. During its charge to the jury, the trial court used the word
“accomplice” four times, all while summarizing the charges in the
informations filed against the co-defendants. The first three references
took place as the trial court reviewed the charges in the information filed
against Orie Melvin:
Count 1: Theft of Services. The actor, and when I
use the term actor, I’m talking about [Orie Melvin].
It’s a euphemism the legislature came up with.
Having control over the disposition of services of
others, namely actor’s Superior Court Judicial staff,
which she personally and through Janine Orie and
[Jane Orie], accomplices pursuant to statute,
utilized to facilitate and promote the actor’s political
campaign for higher judicial office during the
election cycles in both 2003 and 2009.…
Count 3: Theft of Services. The actor, having
control over the disposition of services of another,
namely, the Senatorial staff of [Jane Orie], which
she personally and through Janine Orie and [Jane
Orie], accomplices pursuant to statute, utilized
to facilitate and promote the actor’s political
campaign for higher Judicial office during the
election cycles in both 2003 and 2009.…
Count 5: Misapplication of Entrusted Property or
Property of Government or Financial Institutions.
The actor applied or disposed of property valued at
more than $50, namely, personally and through
Janine Orie, an accomplice pursuant to statute,
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used her Superior Court office facilities and office
equipment to facilitate and promote the actor’s
political campaign activities in her bid for higher
judicial office in both 2003 and 2009.…
N.T., 2/15/2013, at 2776-79.
The fourth reference to “accomplice” occurred as the trial court
reviewed the charges in the 2010 information filed against Janine Orie at
docket number CP-02-CR-0010286:
Count 2: Theft of Services. [Janine Orie], as an
accomplice pursuant to the statute, having
control over the disposition of the services of others,
namely, certain members of the legislative staff of
Senator [Jane Orie], did knowingly direct or cause
to be directed those employees of the
Commonwealth of Pennsylvania … to engage in
political fundraising and/or political campaign work,
… on behalf of [Orie Melvin’s] 2009 Judicial
campaign, knowingly diverting said services to the
benefit of another not entitled thereto.
Id. at 2785.25
After the trial court completed its charge, the jury began deliberations
and later that day it posed a question concerning “the definitions as to what
[the trial court] read to us.” N.T., 2/15/2013, at 2817.
THE COURT: What is it you want defined, Mr. [Foreman]?
25
The statute referenced in the trial court’s phrase “an accomplice
pursuant to statute” is 18 Pa.C.S.A. § 306, entitled “Liability for conduct of
another; complicity.” Section 306 of the Criminal Code provides generally
that a person “is guilty of an offense if it is committed by his own conduct
or by the conduct of another person for which he is legally accountable, or
both,” and defines and explains the parameters of accomplice liability. 18
Pa.C.S.A. § 306.
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FOREMAN: What we are asking is to have the definitions as
to what you read to us. We all have the counts
that we wrote down, but what we want is the
definitions, the one through four which you read
to us.
A JUROR: It was the criteria that you read under each, in
order to meet this, number one, number two,
number three.
THE COURT: You want the crimes?
THE JURY: Yes.
THE COURT: Here is what I’m going to do. I’ll will [sic]
basically reproduce what I gave you. I’ll send
that up, along with the Informations.
Id.
In the discussion between counsel and the trial court regarding how
to respond to the jury’s inquiry,26 counsel for the Commonwealth for the
first time asked the trial court to offer an expanded jury instruction to
include a charge on accomplice liability.
MR. CLAUS: Judge, I have a notice that accomplice was
obviously read by you as part of the charges.
That is part of the standard charging, and I
thought if that’s what —
THE COURT: Well, you are little late, Mr. Claus, don’t you
think?
MR. CLAUS: Well—
26
After a review of the Pennsylvania Rules of Criminal Procedure, including
in particular Rule 646(C)(3), the trial court reconsidered its initial decision
to provide the jury with the informations. N.T., 2/19/2013, at 2837.
Instead, the trial court prepared a handout for the jury, agreeable to the
parties, listing the elements and defenses for each charge. Id. at 2841.
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THE COURT: Yeah, I do.
N.T., 2/15/2013, at 2820.
Although the trial court initially indicated that the request for an
instruction on accomplice liability was too late, it agreed to consider it over
the holiday weekend. On the following Tuesday morning, the trial court
stated that it had reconsidered and would read to the jury an instruction on
accomplice liability provided in writing by the Commonwealth, to which
counsel for Orie Melvin immediately objected27:
THE COURT: All right. Mr. Claus would like the charge on
accomplice given, and I don’t have a problem
with that.
MR. CASEY: I would object to Your Honor doing that. I think
its prejudicial to the defendant. He had the
opportunity to take exceptions on Friday to the
charge, and did not take an exception. And I
understand that the Court —
THE COURT: Mr. Casey, a song written I heard a long time
ago that Kenny Rogers sang, To know when to
hold them, and know when to fold them. I’m
going to let this go out with the jury. I’m going
to give them the exact same thing you gave to
me. And I’m also going to charge them on
accomplice liability.
MR. CASEY: I would take exception to accomplice liability.
THE COURT: You can take all the exception you want.
MR. CASEY: Thank you.
27
Counsel objected to the giving of the charge itself, but not to any of the
specific language contained therein.
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N.T., 2/19/2013, at 2837-38. The trial court then instructed the jury as
follows:
I used the term, and you will see in the document
that you get, of accomplice, and I did not define it
for you. There is a way that one defendant can be
proven liable for the conduct of another person or
persons, and that is when the defendant is an
accomplice of the person who actually commits the
crime at issue. To be an accomplice, a person does
not have to agree to help someone else. The
person is an accomplice if he or she on his or her
own acts to help the other person commit a crime.
More specifically, you may find a defendant is an
accomplice of another in this case if the following
two elements are proven beyond a reasonable
doubt.
One, that the defendant had the intent of promoting
or facilitating the commission of the offense; and
two, that the defendant solicits, encourages,
requests the other person to commit it, or aids the
other person in planning or committing it.
Accomplice liability must be assessed separately for
each crime charged if two or more crimes are
committed. The defendant before you is being
charged as an accomplice for each of those crimes.
He or she may not be found liable unless it is shown
that each individual crime, that this defendant had
the intent of promoting the specific crime and then
solicited, encouraged, requested the other person to
commit it, or aided the other person in planning or
committing it.
In other words, you must decide whether the
prosecution proved beyond a reasonable doubt that
this defendant was an accomplice for the first crime
or the second crime, et cetera.
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It is important to understand that a person is not an
accomplice merely because he or she is present
when a crime is committed, or knows that a crime is
being committed. To be an accomplice, the
defendant must specifically intend to help bring
about the crime by assisting another in its
commission.
A person who is an accomplice will not be
responsible for a crime if and only if the person[,]
before the other person commits the crime[,] either
stops his or her own effort to promote or facilitate
the commission of a crime, and either wholly
deprives his or her previous efforts in effectiveness
in the commission of the crime, or gives timely
warnings to law enforcement.
N.T., 2/19/2013, at 2842-44.28
28
In Janine Orie’s case only, on February 21, 2013, two days after the
supplemental charge, the jury asked two questions regarding accomplice
liability, namely “can we get a more defined explanation of ‘accomplice?’”
and “[c]an it be applied to any of the charges?” The trial court then
instructed the jury as follows:
Ladies and gentlemen of the jury, to be an
accomplice, a person does not have to agree to help
someone else. The person is an accomplice if he or
she on his or her own acts to help the other person
commit the crime knowingly.
More specifically, you may find the defendant is an
accomplice of another in this case if the following
two elements are proven beyond a reasonable doubt.
A, that the defendant had the intent of promoting or
facilitating the commission of the offense of theft of
services and, two, that the defendant solicits,
commands, encourages, requests the other person
to commit it or aids, agrees to aid or attempts to aid
the other person in planning or committing it.
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Rule 647(A) provides as follows:
(A) Any party may submit to the trial judge written
requests for instructions to the jury. Such requests
shall be submitted within a reasonable time before
the closing arguments, and at the same time copies
thereof shall be furnished to the other parties.
Before closing arguments, the trial judge shall
inform the parties on the record of the judge’s
rulings on all written requests and which
instructions shall be submitted to the jury in writing.
The trial judge shall charge the jury after the
arguments are completed.
Pa.R.Crim.P. 647(A).
Rule 647(A)29 was amended in 1985 to change prior practice,
pursuant to which the trial court did not rule on proposed jury instructions
until after counsel for the parties had completed their closing arguments to
the jury. As this Court recognized in Commonwealth v. Hendricks, 546
A.2d 79 (Pa. Super. 1988), appeal denied, 559 A.2d 35 (Pa. 1989),
The difference in the procedure following the 1986
amendment is that the court now is required to
rule on proposed written jury instructions before
closing arguments and charging the jury whereas
It is important to understand that a person is not an
accomplice merely because he or she is present
when a crime is committed or knows that a crime is
being committed. To be an accomplice, the
defendant must specifically intend to help bring
about the crime by assisting another in its
commission.
N.T., 2/21/2013, at 2852-53.
29
On March 1, 2000 (effective July 1, 1985), Rule 1119(A) was
renumbered as Rule 647(A). See Pa.R.Crim.P. 647 Credits.
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under the old procedure the court ruled on the
requested jury instructions after closing arguments
and the charge to jury.
Id. at 81 (emphasis in original). Noting that Rule 647(A) effectively mirrors
Rule 30 of the Federal Rules of Criminal Procedure, this Court indicated that
under both rules, the trial court “is required to rule on all proposed jury
instructions prior to charging the jury and closing summations.” Id. We
further recognized that “[t]he purpose of this rule is to require the judge to
inform [counsel] in a fair way what the charge is going to be, so that they
may intelligently argue the case to jury.” Id. (citing United States v.
Wander, 601 F.2d 1251, 1262 (3d Cir. 1979)); see also Commonwealth
v. Alston, 748 A.2d 677, 679 (Pa. Super.) (same), appeal denied, 795 A.2d
970 (Pa. 2000). At bottom, the rule requires the trial court to provide the
parties with adequate notice of the instruction before closing argument, and
the rule is plainly violated when the trial court presents a new theory of
liability, or otherwise materially modifies the original instructions, after
closing arguments have been completed. See generally United States v.
Smith, 789 F.2d 196, 202 (3d Cir. 1986).
The trial court’s decision to issue a supplemental instruction to the
jury on accomplice liability in this case after closing arguments violated Rule
647(A). As indicated hereinabove, at no time prior to closing arguments did
the trial court advise counsel that it intended to instruct the jury on the
specifics of accomplice liability, and the Commonwealth did not request a
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charge on accomplice liability or object to the absence of such a charge. It
was only after closing arguments and after the jury began deliberating that
the Commonwealth first requested that the trial court instruct the jury,
through a supplemental charge, that Orie Melvin could be convicted as an
accomplice.
On appeal, the Commonwealth contends that the initial charge
contained an instruction on accomplice liability and that, in any event, the
jury knew that Orie Melvin could be found liable as an accomplice.
Commonwealth’s Brief at 90 (“In charging the jury Judge Nauhaus
instructed the jury that [Orie Melvin] had been charged as an accomplice
but did not define the term.”). id. at 92 (“Accomplice liability had always
been an issue in the case and the jury had been told that they could find
[Orie Melvin] guilty as an accomplice.”). We disagree. First, the trial
court’s initial charge did not instruct the jury that Orie Melvin was subject to
accomplice liability. As set forth hereinabove, in summarizing the charges
in the informations filed against Orie Melvin and Janine Orie during its
charge to the jury, the trial court referred to “accomplice” on four
occasions. A review of those four references reflects that on no occasion
did the trial court refer to Orie Melvin as an accomplice. To the contrary, in
every such reference, the trial court referred to either or both of her sisters,
Janine Orie and Jane Orie, as the accomplices of Orie Melvin. The
contention that Janine Orie and Jane Orie were the accomplices of Orie
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Melvin and/or that Orie Melvin may have acted through accomplices to
commit various crimes does not, of course, make Orie Melvin herself an
accomplice. At no time did the trial court ever refer to Orie Melvin as an
accomplice of her sisters (or anyone else).
Second, it is simply untrue that Orie Melvin was charged as an
accomplice or that jury knew Orie Melvin could be found liable as an
accomplice. In its August 14, 2012 information filed against Orie Melvin,
the Commonwealth did not charge her as an accomplice in any of the seven
listed counts. Information, 8/14/2012, at 1-3. Similarly, at trial the
Commonwealth never referred to Orie Melvin as an accomplice in either its
opening or closing arguments to the jury, and on appeal it points us to no
evidence that it introduced at trial to establish her status as an
accomplice.30 Conversely, Orie Melvin does not suggest or argue that there
was no evidence to support her conviction as an accomplice; she only
argues that she was prejudiced by the timing of the charge.
30
In Commonwealth v. Spots, 716 A.2d 580 (Pa.), cert. denied, 526
U.S. 499 (1998), our Supreme Court held that it was not error for the trial
court to instruct the jury on accomplice liability even though the defendant
had been charged only as a principle, “as long as the defendant is put on
notice that the Commonwealth may pursue theories of liability that link the
defendant and another in the commission of crimes.” Id. at 588; see also
Commonwealth v. Smith, 482 A.2d 1124, 1126 (Pa. Super. 1984)
(despite being charged only as principal, defendant had sufficient notice of
potential for accomplice liability theory, and trial court properly instructed
jury on accomplice liability); Commonwealth v. McDuffie, 466 A.2d 660
(Pa. Super. 1983) “[T]he record before us shows that appellant should have
been aware that liability might be imposed on him for the acts and conduct
of [another].”).
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For these reasons, the trial court’s supplemental charge on
accomplice liability advised the jury, for the first time, that Orie Melvin
could be convicted on a new theory of criminal liability (accomplice liability).
Because this supplemental charge to the jury occurred after Orie Melvin’s
closing argument, it violated Rule 647(A).
The Commonwealth also cites this Court’s decision in
Commonwealth v. Kidd, 380 A.2d 416 (Pa. Super. 1977), for the
proposition that where “a jury submits on its own motion a question to the
court indicating confusion or a request for clarification, the court may
properly clarify the jury’s doubt or confusion.” Id. at 419 (citing
Commonwealth v. Peterman, 244 A.2d 723 (Pa. 1968)); see also
Pa.R.Crim.P. 647(C) (“After the jury has retired to consider its verdict,
additional or correctional instructions may be given by the trial judge in the
presence of all parties ….”). In this case, however, the trial court’s
supplemental instruction cannot be categorized as an attempt to clarify any
“doubt or confusion” expressed by the jury. To the contrary, the jury made
clear that it wanted to be informed again on the elements of the crimes
charged, and in response the trial court provided the jury with exactly that,
namely a handout with a list of the elements of each of the crimes against
the co-defendants and their corresponding defenses. At no time did the
jury request any information (definitional or otherwise) about accomplice
liability, and the definition of accomplice was not an element of any crime
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charged in this case, as the trial court acknowledged. N.T., 2/15/2013, at
2821 (originally advising the prosecutor that the “definition of accomplice is
not an element of the crime” and that as a result it would not be included in
the handout to be provided to the jury).
A violation of Rule 647(A), however, does not ipso facto mandate a
reversal for a new trial. In Alston, this Court reviewed its prior decision in
Hendricks before concluding that “prejudice is indeed a mandatory
component” of a Rule 647(A) inquiry.
[T]he Hendricks court quoted federal case law when
it stated that ‘[f]ailure of the court to comply with
Rule 30 requires the granting of a new trial if
“counsel's closing argument was prejudicially
affected thereby.”’ [Hendricks, 546 A.2d at 81]
(quoting United States v. McCown, 711 F.2d 1441,
1452 (9th Cir. 1983)). Further, the Hendricks court
analyzed in great detail the jury instruction requests
made by counsel and the closing argument made to
the jury, drawing a nexus between the court's error
and counsel’s specific statements. Finally, the
Hendricks holding is quite clear: ‘Accordingly, we
conclude that the court’s failure to inform counsel of
its ruling on the requested points for charge prior to
closing arguments and the jury instruction, was
prejudicial to appellant's defense and warrants that a
new trial be granted.’ Id. at 83. In light of all of
these factors, we hold that Rule [647] relief is not
warranted unless prejudice has been established.
Alston, 748 A.2d at 679.31 Federal courts have likewise held that a
“violation of Rule 30 requires reversal only when the defendant can show
31
We reject the trial court’s contention that no prejudice resulted because
the jury had only been deliberating for a short time before receiving the
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actual prejudice.” United States v. Benson, 2006 WL 2520612, at *14
(E.D. Pa. 2006) (quoting United States v. Horton, 921 F.2d 540, 547 (4th
Cir. 1990)). In United States v. Gaskins, 849 F.2d 454 (9th Cir. 1988),
the federal court framed the question as “whether the district judge’s
decision to give the aiding and abetting instruction during jury deliberations,
after initially stating at the Rule 30 hearing that he would not, unfairly
prevented Gaskin's counsel from arguing against an aiding and abetting
theory to the jury.” Id. at 460.
In accordance with this standard, Orie Melvin contends that she was
prejudiced because she relied upon the absence of an accomplice liability
instruction in preparing for closing argument. Orie Melvin’s Brief at 89-90.
Specifically, she argues that “[h]ad the defense known that the trial court
would reverse course and introduce the concept of accomplice liability after
closing arguments concluded,” her counsel “would have directly addressed
the issue in the closing.” Id. at 90.
supplemental instruction. Trial Court Opinion, 9/12/2013, at 28 (“Any harm
that occurred was minimal and not prejudicial since the jury only
deliberated a short time before this [c]ourt gave the expanded instruction of
accomplice liability.”). As Hendricks makes clear, the potentially
prejudicial aspect of a trial court’s decision to provide additional instructions
after closing arguments is that it interferes with counsel’s ability to tailor his
or her closing arguments to the trial court’s actual jury charge. Hendricks,
546 A.2d at 81 (“It [is] the court’s failure to advise counsel of its ruling
prior to closing argument, not the soundness of that ruling, which violate[s]
Rule 30 and prejudicially affect[s] counsel’s summation.”) (quoting Wright
v. United States, 339 F.2d 578, 580 (9th Cir. 1964)).
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Before proceeding to consider Orie Melvin’s contention that she
suffered actual prejudice resulting from the trial court’s clear error, we must
note that Orie Melvin arguably waived this claim by failing to request the
opportunity to offer additional argument to the jury to address the
supplemental charge after being informed that it would be given. Although
this issue has not been discussed by any Pennsylvania appellate court in
connection with Rule 647(A), federal courts have held that prejudice
resulting from violations of Federal Rule of Criminal Procedure 30 may in
some cases be ameliorated or eliminated by permitting counsel the
opportunity for supplemental argument to the jury. See, e.g., United
States v. Fontenot, 14 F.3d 1364, 1368 (9th Cir. 1994) (when “a new
theory is presented to the jury in a supplemental instruction after closing
argument, the court generally should give counsel time for additional
argument”) (quoting Horton, 921 F.2d at 547)); United States v. Civelli,
883 F.2d 191, 196 (2d Cir. 1989) (“[T]he principles that underlie Rule 30
may very well require that the district court allow further argument after an
instruction has been given.”); Gaskins, 849 F.2d at 457 (new trial granted
for violation of Rule 30 after the district court denied defense counsel’s
request to reopen closing argument); Vazquez v. Adams, 2011 WL
3420644, at *6 (C.D. Cal. June 27, 2011), report and recommendation
adopted, 2011 WL 3419562 (C.D. Cal. Aug. 1, 2011) (same); but see Cruz
v. State, 963 A.2d 1184, 1192 (Maryland 2009) (“We are not persuaded
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that a supplemental closing argument would have cured the problem
created by the court’s eleventh hour insertion of this new theory of
culpability.”). Because neither party raised or briefed the waiver issue, and
the novelty under Pennsylvania law of a violation of Rule 647(A), however,
we will proceed to consider Orie Melvin’s claim of actual prejudice on its
merits.
On its merits, we must conclude that Orie Melvin has not established
sufficient prejudice to entitle her to a new trial. While Orie Melvin contends,
in the most general terms, that her counsel would have “directly addressed”
accomplice liability in the closing argument, she offers no explication as to
what the contents of such an argument would have included or what
evidence could have been referenced in support thereof. Without so
stating, she is essentially arguing presumed prejudice. As such, Orie Melvin
has not provided this Court with any basis to evaluate the degree (if any) of
any actual prejudice resulting from the trial court’s error.
Moreover, based upon our review of Orie Melvin’s actual closing
argument to the jury, we are unconvinced that her counsel would have
“directly addressed” accomplice liability if the trial court had timely
instructed the jury. In Orie Melvin’s closing argument, her counsel, inter
alia, attacked the credibility of key witnesses (including in particular
Sasinoski and Pavlot), emphasized the productivity of her judicial staff
during her tenure on the Superior Court (including during 2003 and 2009),
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and reviewed the testimony of the paid professionals (unconnected to her
judicial staff) who managed her political campaigns. N.T., 2/15/2013,
2705-27. Counsel began by describing Orie Melvin as a “courageous and
honorable woman” and ended by insisting that she “got the work done,
served her job, and ran her campaign with political professionals, and she
paid for it with private funds.” Id.
Importantly, the dominant theme of her closing argument was not
that she bore no responsibility for any wrongdoing, but rather that no
wrongdoing occurred. As such, even with respect to the three counts
that alleged that she acted through accomplices (Counts 1, 3, and 5), her
counsel never directly addressed the Commonwealth’s specific charge that
she diverted services “personally” and/or through her accomplices (Jane
Orie and Janine Orie). Also, counsel did not directly address the charge
that Orie Melvin conspired with others to divert services because it was her
contention that no services were ever diverted. The certified record simply
provides no basis on which to conclude that Orie Melvin suffered any
prejudice as a result of the late instruction.
Accordingly, in the absence of any showing of prejudice, we decline to
grant Orie Melvin any relief on this issue.
N. Letters of Apology and Letters of Apology Inscribed on
Photograph in Handcuffs
For her fifteenth issue on appeal, Orie Melvin raises three arguments
related to the portion of her sentence requiring her to write letters of
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apology to her judicial staff, and to the judges of the courts of common
pleas and intermediate appellate courts, and the Justices of the Supreme
Court of Pennsylvania on a photograph of her in handcuffs. First, she
contends that this portion of her sentence violates her rights against self-
incrimination under the Fifth Amendment to the United States Constitution
and Article I, Section 9 of the Pennsylvania Constitution. Second, she
claims that this portion of her sentence is not a lawful component of a
criminal sentence under 42 Pa.C.S.A. § 9721. Third, she argues that the
requirement that she write apology letters is not a part of her sentence
because it was not included in the written sentencing order. We address
these contentions in turn.
1. Constitutional Violation Claims
First, in Commonwealth v. Melvin, 79 A.3d 1195 (Pa. Super. 2013),
this Court granted Orie Melvin’s request for a stay from the apology letters
requirement on constitutional grounds, indicating that said stay would
remain in effect “until such time as her direct appeal in this Court has been
decided” and “pending final resolution by this Court of her claims of
illegality of sentence.” Id. at 1202, 1203. Apparently, she now seeks to
extend the stay indefinitely, arguing that “[a]s long as Orie Melvin continues
to assert her innocence, she cannot be required to apologize.” Orie Melvin’s
Brief at 95. We cannot agree. In Melvin, this Court reviewed applicable
decisions of our Supreme Court and determined that the requirement that
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she write apology letters violated her right against self-incrimination during
the pendency of her direct appeal. Id. at 1203. We are aware of no federal
or Pennsylvania state law, and Orie Melvin has not cited to any, that
supports the notion that the right against self-incrimination extends beyond
the pendency of a direct appeal. As a result, we must conclude that Orie
Melvin is not entitled to relief from the apology letters requirement on
constitutional grounds after her direct appeal has been decided.
2. Legality of Sentencing Under the Sentencing Code
Second, Orie Melvin posits that the requirement that she write the
apology letters is illegal because it is not a lawful component of a criminal
sentence under 42 Pa.C.S.A. § 9721. Whether the trial court had the power
to impose the challenged condition under the Sentencing Code concerns the
legality of sentence. Commonwealth v. Hall, 80 A.3d 1204, 1211 (Pa.
2013); Commonwealth v. Robinson, 931 A.2d 15, 21 (Pa. Super. 2007)
(en banc). Challenges to an illegal sentence cannot be waived32 and may
be reviewed sua sponte by this Court. Commonwealth v. Mears, 972
A.2d 1210, 1211 (Pa. Super. 2009); Commonwealth v. Merolla, 909 A.2d
337, 347 (Pa. Super. 2006).
32
In its Rule 1925(a) written opinion, the trial court contends that Orie
Melvin cannot challenge the apology letter requirement on appeal because
she did not file a post-sentence motion on this issue. Trial Court Opinion,
9/12/2013, at 31. Because challenges to the legality of sentence, however,
are non-waivable, Commonwealth v. Berry, 877 A.2d 479, 486 (Pa.
Super. 2005), appeal denied, 917 A.2d 844 (Pa. 2007), no post-trial motion
was necessary to preserve the issue for appeal.
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The scope and standard of review applied to
determine the legality of a sentence are well
established. If no statutory authorization exists for a
particular sentence, that sentence is illegal and
subject to correction. An illegal sentence must be
vacated. In evaluating a trial court’s application of a
statute, our standard of review is plenary and is
limited to determining whether the trial court
committed an error of law.
Commonwealth v. Leverette, 911 A.2d 998, 1001–02 (Pa. Super. 2006)
(citations omitted); Commonwealth v. Williams, 868 A.2d 529, 532 (Pa.
Super. 2005), appeal denied, 890 A.2d 1059 (Pa. 2005); Commonwealth
v. Zampier, 952 A.2d 1179, 1181 (Pa. Super. 2008). A challenge to the
legality of a sentence “is essentially a claim that the trial court did not have
jurisdiction to impose the sentence that it handed down. ... A trial court
ordinarily has jurisdiction to impose any sentence which is within the range
of punishments which the legislature has authorized for the defendant’s
crimes.” Commonwealth v. Cappellini, 690 A.2d 1220, 1226 (Pa. Super.
1997) (quoting Commonwealth v. Catanch, 3581 A.2d 226, 228 (Pa.
Super. 1990)).
42 Pa.C.S.A. § 9721(a) provides trial courts with seven alternative
forms of criminal sentences:
(a) General rule.--In determining the sentence to
be imposed the court shall, except as provided in
subsection (a.1), consider and select one or more of
the following alternatives, and may impose them
consecutively or concurrently:
(1) An order of probation.
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(2) A determination of guilt without
further penalty.
(3) Partial confinement.
(4) Total confinement.
(5) A fine.
(6) County intermediate punishment.
(7) State intermediate punishment.
42 Pa.C.S.A. § 9721(a). The trial court sentenced Orie Melvin to county
intermediate punishment. This Court has stated that the intent of the
legislature in adopting intermediate punishment programs was to give trial
courts another sentencing option which “would lie between probation and
incarceration with respect to sentencing severity; to provide a more
appropriate form of punishment/treatment for certain types of nonviolent
offenders; to make the offender more accountable to the community; and
to help reduce the county jail overcrowding problem.” Commonwealth v.
Poncala, 915 A.2d 97, 101 (Pa. Super. 2006) (citing Williams, 868 A.2d
at 534), appeal denied, 932 A.2d 1287 (Pa. 2007).
When imposing a county intermediate punishment, the trial court may
attach specified conditions to the sentence, as set forth in 42 Pa.C.S.A. §
9763(b):
(b) Conditions generally.—The court may attach
any of the following conditions upon the defendant
as it deems necessary.
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(1) To meet family responsibilities.
(2) To be devoted to a specific
occupation or employment.
(3) To participate in a public or nonprofit
community service program.
(4) To undergo individual or family
counseling.
(5) To undergo available medical or
psychiatric treatment or to enter and
remain in a specified institution, when
required for that purpose.
(6) To attend educational or vocational
training programs.
(7) To attend or reside in a rehabilitative
facility or other intermediate
punishment program.
(8) To refrain from frequenting unlawful
or disreputable places or consorting with
disreputable persons.
(9) To not possess a firearm or other
dangerous weapon unless granted
written permission.
(10) To make restitution of the fruits of
the crime or to make reparations, in an
affordable amount, for the loss or
damage caused by the crime.
(11) To be subject to intensive
supervision while remaining within the
jurisdiction of the court and to notify the
court or designated person of any
change in address or employment.
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(12) To report as directed to the court
or the designated person and to permit
the designated person to visit the
defendant’s home.
(13) To pay a fine.
(14) To participate in drug or alcohol
screening and treatment programs,
including outpatient and inpatient
programs.
(15) To do other things reasonably
related to rehabilitation.
(16) To remain within the premises of
the defendant’s residence during the
hours designated by the court.
(17) To be subject to electronic
monitoring.
42 Pa.C.S.A. § 9763(b).
None of the conditions in section 9763(b) provides that the defendant
may be compelled to write letters of apology or to require the defendant be
photographed in handcuffs for distribution to a designated group of people
(here, members of the Pennsylvania judiciary). We therefore we must
determine whether either of the conditions imposed by the trial court fall
within the “catchall” provision in subsection (15), namely “[t]o do other
things reasonably related to rehabilitation.” Id. at § 9763(b)(15).
In fashioning a sentence, we have acknowledged that trial courts are
vested with “great, but not unfettered” discretion. Commonwealth v.
Thier, 663 A.2d 225, 229 (Pa. Super.), appeal denied, 670 A.2d 643 (Pa.
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1995). In Thier, for example, this Court ruled that imposing as a condition
of probation “reasonably related to the rehabilitation of the defendant”33 a
prohibition against engaging in a specific business for one year exceeded
the trial court’s statutory authority under the Sentencing Code. Id. More
recently, our Supreme Court ruled that a trial court could not impose a
condition that the defendant pay a monthly sum to the children of the
victim of his crime, either for purposes of restitution or rehabilitation. Hall,
80 A.3d at 1212-18.
The scope of this catchall provision in subsection 9763(b)(15) is
undefined, and thus we must apply basic principles of statutory
interpretation to ascertain and effectuate the intention of the legislature.
The Statutory Construction Act requires penal provisions of statutes to be
strictly construed, 1 Pa.C.S.A. § 1928(b)(1), and thus “such language
should be interpreted in the light most favorable to the accused.”
Commonwealth v. Huggins, 836 A.2d 862, 868 n.5 (Pa. 2003) (quoting
Commonwealth v. Booth, 766 A.2d 843, 846 (Pa. 2001)), cert. denied,
541 U.S. 1012 (2004); Hall, 80 A.3d at 1212.
Moreover,
When possible, every statute should be construed to
give effect to all its provisions. Courts must read
33
42 Pa.C.S.A. § 9754(c)(13) provides that a sentencing court may require
the defendant to “satisfy any other conditions reasonably related to the
rehabilitation of the defendant and not unduly restrictive of his liberty or
incompatible with his freedom of conscience.” 42 Pa.C.S.A. § 9754(c)(13).
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and evaluate each section of a statute in the context
of, and with reference to, the other sections of the
statute, because there is a presumption that the
legislature intended the entire statute to be
operative and effective.
Poncala, 915 A.2d at 104. In so doing, we apply two closely related
principles of interpretation. Noscitur a sociis (“it is known by its
associates”), provides that the meaning of a word or phrase may be
determined by reference to the provisions immediately surrounding it.
BLACK’S LAW DICTIONARY, 1087 (8th ed. 2004); Mountain Village v. Bd. of
Supervisors of Longswamp Twp., 874 A.2d 1, 8 (Pa. 2005). Similarly,
ejusdem generis (“of the same kind or class”), dictates that when a list of
two or more specific descriptors is followed by a more general descriptor,
the otherwise wide meaning of the general descriptor must be restricted to
the same general class of the specific descriptors that preceded it. BLACK’S
LAW DICTIONARY, 556 (8th ed. 2004); Tech One Associates v. Bd. of Prop.
Assessment, Appeals & Review of Allegheny County, 53 A.3d 685,
697 (Pa. 2012).
The vast majority of the conditions in section 9763(b) are not punitive
in nature, although some may have ancillary punitive effects. In the
broadest sense, the first three conditions all benefit the family of the
defendant and make him or her more accountable to his or her community,
and the tenth condition benefits the victim of the crime. The fourth, fifth,
sixth, seventh, and fourteenth conditions provide for rehabilitation through
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consultation with professionals, and the eighth, ninth, eleventh and twelfth
conditions all aim to prevent the defendant from committing additional
crimes. Only the thirteenth, sixteenth, and seventeenth conditions are
purely punitive in nature, providing the sentencing court with the authority
to impose fines or to impose lesser alternatives to total confinement.
In interpreting the permissible scope of the conditions that may be
imposed under subsection 9763(b)(15) as “things reasonably related to
rehabilitation,” we begin by concluding that the requirement that Orie
Melvin send letters of apology to both her former staff and the members of
the judiciary is a permissible condition under subsection 9763(b)(15). Much
like the condition of restitution or reparations for the loss or damage caused
by the crime, as permitted by subsection 9763(b)(10), these letters of
apology force Orie Melvin to acknowledge the harm caused by her crimes.
This condition is also is reasonably tailored to Orie Melvin’s rehabilitation, as
it may force her to accept responsibility for the harm she caused and, as
such, is consistent with the goals of rehabilitation. See Hall, 80 A.3d at
1215 (identifying the goals of rehabilitation as “recognition of wrongdoing,
deterrence of future criminal conduct, and encouragement of future law-
abiding conduct”).
We turn to the condition imposed by the trial court that Orie Melvin
write the apology letters to the members of the judiciary on photographs
while posed in handcuffs. The certified record reflects that this condition
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was not imposed to promote her rehabilitation, but rather merely to shame
and humiliate her in the eyes of her former colleagues in the judiciary. The
trial court unquestionably staged the photograph for maximum effect. At
the time it was taken (immediately after sentencing), Orie Melvin was no
longer in police custody and was otherwise free to go home to begin house
arrest. She was not in restraints at that time, and the trial court directed
that she be placed in handcuffs only to take the photograph. N.T.,
5/7/2013, at 66 (“This is the picture. Put handcuffs on her.”). The trial
court’s use of the handcuffs as a prop is emblematic of the intent to
humiliate Orie Melvin in the eyes of her former judicial colleagues.
Our conclusion that the trial court’s decision to force Orie Melvin to
write apology letters on the degrading photograph was solely intended to
shame her is further buttressed by the fact that it did not require her to do
so for the apology letters to those most directly affected by Orie Melvin’s
wrongdoing, namely the members of her judicial staff required to do
political work and risk their jobs in the process. Instead, the trial court only
ordered the use of the highly embarrassing photograph for the apology
letters to the far broader and more dispersed group of recipients (members
of the judiciary). As such, this condition was imposed solely for the purpose
of humiliating and shaming her.
In no sense can this unorthodox gimmick be construed as legitimately
intended for her rehabilitation, but rather as another form of punitive
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sanction for her crimes – not one authorized under the Sentencing Code. In
this regard, we emphasize that the only catchall condition in section
9763(b) is its subsection (15), which authorizes “things reasonably related
to rehabilitation.” 42 Pa.C.S.A. § 9763(b)(15). The statute does not
authorize forms of punishment other than those specifically enumerated.
While a defendant may conceivably (or idiosyncratically) experience some
degree of shame from any of the section 9763(b) conditions, inflicting
shame or humiliation on the defendant is not the primary purpose of any of
the specifically defined conditions. Applying noscitur a sociis and ejusdem
generis in this context, we must conclude that while a sentencing court has
wide latitude under subsection 9763(b)(15) to design conditions to assist in
efforts at rehabilitation, no condition may be imposed for the sole purpose
of shaming or humiliating the defendant. Nothing in section 9763(b), or for
that matter, anywhere else in the Sentencing Code, provides (or even
suggests) that shaming or humiliating a defendant is consistent with either
penological policies of this Commonwealth in general or the goals of
rehabilitation in particular.
In this regard, we note that the highest courts in at least five sister
states have reached similar conclusions, namely that shaming is not
reasonably related to rehabilitation and may in many circumstances
overshadow any possible rehabilitative effects that the punishment might
otherwise provide. See, e.g., State v. Schad, 206 P.3d 22, 35 (Kansas
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2009); State v. Mohammad, 43 P.3d 318, 325 (Montana 2002); People
v. Meyer, 680 N.E.2d 315, 318-19 (Illinois 1997); State v. Burdin, 924
S.W.2d 82, 87 (Tenn. 1996); People v. Letterlough, 655 N.E.2d 146,
148-49 (N.Y. 1995); but see United States v. Genentera, 379 F.3d 596,
607 (9th Cir. 2004).
The broad discretion under subsection 9763(b)(15) to fashion creative
conditions to county intermediate punishment to promote efforts at
rehabilitation does not extend to permit drastic departures from the
sentencing concepts reflected in our Sentencing Code. The decision to
permit shaming sentences, if determined to be appropriate, is best left to
the realm of our legislature employing its usual safeguards of legislative
study and debate. At present, however, conditions on criminal sentences
designed solely to shame and humiliate the defendant are not expressly or
implicitly authorized by statute, and thus such conditions are illegal and
subject to correction.
Because the trial court exceeded its statutory authority in requiring
Orie Melvin to write apology letters to the state’s judges on a photograph of
herself in handcuffs, this condition of Orie Melvin’s sentence of county
intermediate punishment is hereby stricken as illegal. As ordered by the
trial court, Orie Melvin will be required to write letters of apology both to
the members of her judicial staff and to every judge in Pennsylvania, but
such apology letters do not need be written on the photograph of Orie
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Melvin in handcuffs. This Court has the authority to correct an illegal
sentence directly rather than to remand the case for re-sentencing so long
as we do not disrupt the trial court’s sentencing scheme in doing so. See,
e.g., Commonwealth v. Williams, 997 A.2d 1205, 1210 (Pa. Super.
2010); Commonwealth v. Dobbs, 682 A.2d 388, 392 (Pa. Super. 1996);
Commonwealth v. Vazquez, 476 A.2d 466 (Pa. Super. 1984). Here, we
conclude that this amendment to the trial court’s sentence does not disrupt
the sentencing scheme. During sentencing, the trial court made clear that
the apology letters were necessary to address Orie Melvin’s refusal to
accept responsibility for her crimes:
I don’t believe that [Orie Melvin] is an evil person.
I’ve never believed that. I mean, you watch
television, you see really, really evil people. I don’t
believe she is evil. But I do believe her arrogance is
stunning. Her arrogance is stunning.
She is a person of privilege and, unfortunately, she
believes she can pick and choose what rules she
wishes to follow, and which are inconvenient and
can be ignored.
Truth be told, I honestly believe that in your heart
of hearts, you don’t think you did anything wrong.
Which is more of a pity. You have consistently
refused to accept any responsibility for any of the
harm you have done to the people who worked with
you, the electoral process, to your colleagues in the
Judiciary, and most of all your family. It’s real
simple to say that just she violated the law. She
ruined an awful lot of people. The victims of her
crime [are] enormous. This was not a single error
in judgment. This went on for an awfully long
period of time. Two elections.
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* * *
The defendant has left a trail of victims.
Unbelievable. Your sister’s staff, your staff, you
made them do things that you knew jeopardized
their jobs and their livelihoods. You brought shame
to the Judiciary. There are 500, at least 500
members of the Judiciary who have been tarnished
by your behavior.
N.T., 5/7/2013, at 49, 51.
In our view, the trial court’s requirement that Orie Melvin write letters
of apology to her judicial staff and to every judge in Pennsylvania directly
addresses the trial court’s intent to rehabilitate her by requiring her to
acknowledge her wrongdoing. Because our amendment of the sentence
does not disrupt the trial court’s overall sentencing scheme, including its
efforts to have Orie Melvin accept responsibility for her crimes and their
impact, remand for resentencing is unnecessary.
3. Written Sentencing Order
Finally, we reject Orie Melvin’s contention that the requirement that
she write apology letters is not a part of her sentence because it was not
included in the written sentencing order. As explained hereinabove, the
certified record on appeal reflects that the requirement of writing letters of
apology was expressly set forth in a written Amended Order of Sentence
and again later in a Corrected Amended Order of Sentence. See supra at
5. Accordingly, Commonwealth v. Foster, 324 A.2d 538 (Pa. Super.
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1974), and its progeny have no application here. Id. at 539 (“Oral
statements made by the judge in passing sentence, but not incorporated in
the written sentence signed by [the sentencing judge], are not part of the
judgment of sentence.”); Commonwealth v. Willis, 68 A.3d 997, 1010
(Pa. Super. 2013) (“It is well settled that, where there is a discrepancy
between the sentence as written and orally pronounced, the written
sentence generally controls.”).
II. Sua Sponte Stay of Sentencing During Pendency of Appeal
We turn to Orie Melvin’s appeal at 1974 WDA 2013 from the trial
court’s sua sponte order dated November 15, 2013 staying her criminal
sentence in its entirety. For her first issue in this appeal, Orie Melvin insists
that the trial court lacked jurisdiction and authority to sua sponte suspend
Orie Melvin’s sentence while her direct appeal was pending in this Court.
We agree and reverse the trial court’s November 15, 2013 order staying
Orie Melvin’s sentence.
In Commonwealth v. Quinlan, 639 A.2d 1235 (Pa. Super. 1994),
appeal dismissed, 675 A.2d 711 (Pa. 1996), this Court set forth the general
rules with respect to a trial court’s jurisdiction over its orders after an
appeal has been taken.
Trial courts have the power to alter or modify a
criminal sentence within thirty days after entry, if no
appeal is taken. 42 Pa.C.S.A. § 5505. Generally,
once the thirty-day period is over, the trial court
loses the power to alter its orders. Also, when an
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appeal is taken, the trial court has no jurisdiction to
modify its sentence. Pa. R.A.P. 1701(a).
Id. at 1238 (case citations omitted); see also Commonwealth v.
Walters, 814 A.2d 253, 255 (Pa. Super. 2002), appeal denied, 831 A.2d
599 (Pa. 2003).
Based upon this general rule, the trial court had no jurisdiction to
enter a stay of its sentencing order.34 In its opinion pursuant to Rule
1925(a) of the Pennsylvania Rules of Appellate Procedure, however, the
trial court explained it acted in accordance with appellate Rule 1701(b)(1),
which provides trial courts with limited exceptions from the general rule to,
inter alia, preserve the status quo during the pendency of an appeal. The
trial court stated:
Pursuant to Pa. R.A.P. 1701(b)(1), the trial court is
authorized to grant supersedeas after an appeal is
taken. Pa. R.A.P. 1701(b)(1) states as follows:
(b) Authority of a trial court or agency
after appeal. After an appeal is taken or
review of a quasijudicial order is sought,
the trial court or other government unit
may:
34
The 30-day period for modifications under 42 Pa.C.S.A. § 5505 expired
well before the trial court entered its November 15, 2013 stay order. While
this Court has recognized an exception to section 5505’s 30-day period for
modifications to correct clerical or other formal errors clear on the face of
the record and which do not require an exercise of discretion, ISN Bank v.
Rajaratnam, 83 A.3d 170, 172-73 (Pa. Super. 2013) (citing Stockton v.
Stockton, 698 A.2d 1334, 1337 n.3 (Pa. Super. 1997)), that exception is
not at issue here.
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(1) Take such action as may be
necessary to preserve the status quo,
correct formal errors in papers relating to
the matter, cause the record to be
transcribed, approved, filed and
transmitted, grant leave to appeal in
forma pauperis, grant supersedeas, and
take other action permitted or required
by these rules or otherwise ancillary to
the appeal or petition for review
proceeding.
This [c]ourt has attempted to make it clear that the
sentence imposed on May 14, 2013, was an entire
sentencing scheme. (HT at 4). The conditions
imposed on the sentence of intermediate punishment
were all essential to the sentencing scheme. The
sentencing conditions were imposed pursuant to 42
Pa.C.S.A. §9763(b)(15) and are required by the
sentence.
[Orie Melvin] cannot select the parts of her sentence
that she wants to serve, and the parts that she
doesn’t want to serve. This court imposed a
sentence with multiple conditions, each of which was
an essential component of the sentencing scheme.
The Superior Court granted stay of the conditions
imposed on house arrest requiring [Orie Melvin] to
write apology letters to [Orie Melvin’s] staff and send
a photograph with a short apology written thereon to
the Pennsylvania judiciary. This [c]ourt’s sentence
cannot be bifurcated. The sentence imposed on May
14, 2013, was an entire sentencing scheme. The
conditions are integral to the sentence of house
arrest. [Orie Melvin] stopped serving this Court’s
sentence when the Superior Court stayed the
apology requirement. Therefore, this [c]ourt stayed
the entire sentence to preserve the status quo. This
[c]ourt properly granted supersedeas of the entire
sentence in the instant matter, pursuant to Pa.R.A.P.
1701(b)(1).
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Trial Court Opinion, 3/24/2014, at 3-5.
A supersedeas order “is an auxiliary process designed to supersede or
hold in abeyance the enforcement of the judgment of an inferior tribunal.”
Goodstein v. Goodstein, 619 A.2d 703, 706 (Pa. Super. 1992) (quoting
Young J. Lee, Inc. v. Com., Dept. of Revenue, 474 A.2d 266 (Pa.
1983)), appeal dismissed, 639 A.2d 1180 (Pa. 1994). Because the trial
court’s November 15, 2013 order suspended its own sentencing order,
rather than the “judgment of an inferior tribunal,” we question whether said
order is properly designated as a “supersedeas.” We need not decide this
question, however, since whether the November 15, 2013 order was a
“supersedeas” or merely a stay to preserve the status quo, the trial court
lacked any jurisdiction to enter it for at least two reasons. First, the trial
court’s order did not preserve, but rather disrupted, the status quo. At the
time of its entry, Orie Melvin was serving her sentence of house arrest and
complying with all of the conditions of said sentence with the exception of
the requirement to write apology letters, which condition this Court stayed
on November 6, 2013 during the pendency of her direct appeal. The trial
court’s order altered the status quo.
Second, and more importantly, in its November 6, 2013 opinion
granting the stay of the apology letters requirement, this Court expressly
rejected any contention that its stay either disrupted the trial court’s
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sentencing scheme or provided any basis for the trial court to revisit or
modify its sentencing order at that time.
In its Response to Application for Stay, the
Commonwealth requests that if this Court grants
the stay, the case should be immediately remanded
to the trial court for resentencing because the
‘entire sentencing scheme has been disrupted.’ We
decline to do so for two reasons. First, the
Commonwealth cites to no rule or other authority
that would permit us to remand the case to the trial
court at this time, even if we were otherwise
inclined to do so. Second, and more importantly,
the grant of the Application for Stay does not
disrupt the trial court's sentencing scheme.
Instead, it only stays a portion of the sentencing
order pending resolution by this Court of
constitutional and statutory arguments regarding its
legality. The appropriate audience for the
Commonwealth's argument is the merits panel of
this Court. If it determines that the requirement
that Orie Melvin write and send apology letters is
illegal, and that eliminating the requirement
disrupts the sentencing scheme, the case will be
remanded to the trial court for resentencing
(including, if appropriate, a term of incarceration).
At this juncture, we do no more than postpone the
performance of this part of the sentence until Orie
Melvin's direct appeal is decided.
Melvin, 79 A.3d at 1204-05.
On appeal, Orie Melvin contends that the trial court entered its sua
sponte order staying the entire sentence “in defiance of this Court’s ruling
on November 6, 2013.” Orie Melvin’s Brief at 25. We agree. We note that
in its appellate brief, the Commonwealth also agreed, indicating that “a
panel of this Court refused to give Judge Nauhaus the opportunity to stay
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the entire sentence, explicitly rejecting the argument that the stay of the
apology letters would disrupt the sentencing scheme.” Commonwealth’s
Brief at 14. At oral argument of this appeal on May 30, 2014, the
Commonwealth declined to support the trial court’s contention that it had
any jurisdiction to enter the November 15, 2013 stay order.35
III. CONCLUSION
On the appeal at 844 WDA 2013, we affirm the judgment of sentence
after modification of the sentence as described in detail hereinabove. As
ordered by the trial court, Orie Melvin will be required to write letters of
apology to the members of her judicial staff and to every judge in
Pennsylvania, but no apology letter need be written on photographs of
herself in handcuffs.
On the appeal at 1974 WDA 2013, we reverse the trial court’s order
staying Orie Melvin’s criminal sentence and reinstate the sentence set forth
in the written sentencing order dated May 7, 2013 except that the condition
that the letters of apology to members of the Pennsylvania Judiciary be
written on a photograph of Orie Melvin in handcuffs is eliminated.
Jurisdiction relinquished.
35
In light of our disposition of Orie Melvin’s first issue in the appeal at
1974 WDA 2013, it is unnecessary to address her second issue on appeal.
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Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 8/21/2014
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