Com. v. Robel, M. ( 2022 )

J-A17005-22
J-A17006-22
NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
COMMONWEALTH OF PENNSYLVANIA : IN THE SUPERIOR COURT OF
: PENNSYLVANIA
:
v. :
:
:
MICHAEL ROBEL :
:
Appellant : No. 2466 EDA 2021
Appeal from the Judgment of Sentence Entered October 14, 2021
In the Court of Common Pleas of Chester County
Criminal Division at No(s): CP-15-CR-0003414-2019
COMMONWEALTH OF PENNSYLVANIA : IN THE SUPERIOR COURT OF
: PENNSYLVANIA
:
v. :
:
:
KAREEM JOHNSON :
:
Appellant : No. 2470 EDA 2021
Appeal from the Judgment of Sentence Entered October 14, 2021
In the Court of Common Pleas of Chester County
Criminal Division at No(s): CP-15-CR-0003415-2019
BEFORE: PANELLA, P.J., NICHOLS, J., and COLINS, J.*
MEMORANDUM BY PANELLA, P.J.: FILED NOVEMBER 22, 2022
Appellants Michael Robel and Kareem Johnson appeal from the
judgment of sentence following their convictions for failing to provide required
financial information. Robel and Johnson argue their alleged criminal conduct
constituted at most a de minimis infraction and therefore the charge should
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* Retired Senior Judge assigned to the Superior Court.
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have been dismissed. We consolidate these appeals pursuant to Pa.R.A.P. 513
and we vacate the judgment of sentence after finding that the omission was
a de minimis violation of the applicable statute.
The essential facts of both cases are largely undisputed. Robel and
Johnson were elected constables tasked with, among other duties, preserving
peace at polling places. Robel was a constable for Northumberland County,
while Johnson was a constable for Chester County. As a condition of holding
these offices, both men were required to file an annual statement of financial
interest documenting any source of income over $1300 they received while in
office.
Perhaps most importantly to this case, in 2018, both men were
employed as security officers by the company Raven Knights, LLC during the
construction of the Mariner East Pipeline in Chester County but failed to list
this fact in their statement of financial interest. As a result, the Chester County
District Attorney’s Office charged both men with accepting bribes,1 official
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1 18 Pa.C.S.A. § 4701(a)(3).
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oppression,2 conflict of interest,3 accepting improper influence,4 and failing to
properly complete their statements of financial interest.5
At the conclusion of their jury trial, Robel and Johnson moved for
judgment of acquittal. The trial court acquitted them of four of their five
charges. The jury then convicted them of the only remaining charge against
each, the failure to properly complete the statement of financial interest.
Initially, we note that Robel and Johnson were tried together as co-
defendants in the trial court and petitioned for their appeals to be consolidated
before this Court. Their petition was denied, but they were granted permission
to argue together before this panel. Pa.R.A.P. 513 provides that we may, in
our discretion, consolidate appeals. See Always Busy Consulting, LLC v.
Babford & Company, Inc., 247 A.3d 1033, 1042 (Pa. 2021). The issues
raised and arguments made are substantially the same for each appellant.
Based on this, we consolidate these appeals sua sponte.
Next, we analyze the timeliness of this appeal. Robel and Johnson argue
that their post-sentence motions, which were electronically filed, were timely
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2 18 Pa.C.S.A. § 5301(2).
3 18 Pa.C.S.A. § 1103(a).
4 18 Pa.C.S.A. § 1103(c).
5 18 Pa.C.S.A. § 1105(a).
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under the circumstances and that their appeal was, in turn, also timely. We
agree.
On October 14, 2021, both Robel and Johnson were sentenced to pay a
$250.00 fine and court costs. They filed post-sentence motions electronically
pursuant to Pa.R.Crim.P. 576.1, which allows a party to timely submit a filing
electronically. Those motions were filed on October 25, 2021, the final day
for timely filing. Counsel received an electronic mail confirmation of the
submission of this filing. However, he then received additional electronic mail
the following morning, on October 26, 2021, stating the filing had been
rejected. The motions were administratively rejected by the trial court due to
an issue with the electronic filing. Counsel claimed that the filing was rejected
because the electronic “tag” on the document was incorrect, however, it was
the only “tag” available for selection at the time of filing. Counsel re-filed the
post-sentence motions that same morning with a different tag. Given these
circumstances, we conclude the post-sentence motions were timely filed.6
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6 “[W]hile the Prothonotary must inspect documents that are sent for filing to
ensure they are in the proper form, the power to reject such documents is
limited to notifying the proper party that the document is defective so that the
defect may be corrected through amendment or addendum. To hold otherwise
would be to confer on the Prothonotary the power to implement the Rules ...
to determine, based upon criteria other than the date they are received, which
[documents] are timely. Such a power is inconsistent with our supreme court's
pronouncement that a document is filed when the Prothonotary receives it.”
Commonwealth v. Alaouie, 837 A.2d 1190, 1192 (Pa. Super. 2003). Here,
the Prothonotary promptly notified counsel of the technical issue, and counsel
promptly corrected the filing.
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And, as the post-sentence motions were denied on October 27, 2021, the
notices of appeal were timely filed 7
We now turn to the merits of these appeals. Robel and Johnson raise
two issues for our review. First, they claim that if they committed an infraction
under the relevant statute, it was not the type of behavior that the legislature
intended to punish. Next, they argue that the evidence presented at trial was
insufficient to establish beyond a reasonable doubt that they purposefully
omitted information from their financial statements.
Johnson and Robel’s first argument centers around the purpose and
scope of the State Ethics Act. They argue that any violation of the Act they
committed was de minimis in nature and we should therefore vacate their
convictions. See Appellant’s Brief at 18.8 Johnson and Robel argue that the
trial court misapplied the law and exercised manifestly unreasonable judgment
in denying their motion for acquittal. See id. at 20.
When reviewing a trial court’s decision regarding whether an action
constitutes a de minimis infraction, we employ an abuse of discretion
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7The thirtieth day was Friday, November 26, 2021, a court holiday. Therefore,
pursuant to our Rules of Appellate Procedure, the appeal period ran to the
next day the court was open for filing, Monday, November 29, 2021. See
Pa.R.A.P. 107; 1 Pa.C.S.A. § 1908.
8 As we noted in our discussion on consolidation, Robel and Johnson have filed
separate appeals. However, their issues and arguments are identical. To
simplify this memorandum, our citations refer to the documents filed in
Robel’s appeal at 2466 EDA 2021.
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standard. See Commonwealth v. Przybyla, 722 A.2d 183, 184 (Pa. Super.
1998). We will find an abuse of discretion has occurred when a trial court has
overridden or misapplied the law, or used manifestly unreasonable, biased or
prejudiced judgment as reflected in the record. See Commonwealth v.
LeClair, 236 A.3d 71, 78 (Pa. Super. 2020). The legislature has codified the
procedure for handling a de minimis infraction in 18 Pa.C.S.A. § 312(a) as
follows:
General rule.—The court shall dismiss a prosecution if, having regard to
the nature of the conduct charged to constitute an offense and the
nature of the attendant circumstances, it finds that the conduct of the
defendant:
(1) was within a customary license or tolerance, neither expressly
negatived by the person whose interest was infringed nor
inconsistent with the purpose of the law defining the offense;
(2) did not actually cause or threaten the harm or evil sought to
be prevented by the law defining the offense or did so only to an
extent too trivial to warrant the condemnation of conviction; or
(3) presents such other extenuations that it cannot reasonably be
regarded as envisaged by the General Assembly or other authority
in forbidding the offense.
18 Pa.C.S.A. § 312(a).
The legislature codified this power intending to allow trial courts to
dismiss charges when they amount to petty infractions that have not harmed
a victim or society. See Commonwealth v. Stetler, 95 A.3d 864, 892 (Pa.
Super. 2014).
Robel and Johnson were found guilty of violating 65 Pa.C.S.A. § 1105(a),
which required them to file a statement of financial interests form and to
provide all requested information to the best of their “knowledge, information
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and belief”. The statute is part of the Public Official and Employee Ethics Act
which seeks to provide guidelines for public officials to follow, specifically
regarding their finances, to maintain transparency and public confidence in
government. See 65 Pa.C.S.A. §§ 1101 - 1101.1. The statement of financial
interests form requires disclosure of “any direct or indirect source of income
totaling in the aggregate $1,300 or more”. See id. at § 1105(b)(5).
Robel and Johnson were charged with failing to fully disclose the sources
of their personal income for 2018. See N.T. 7/13/21, Vol. 2 of 3, at 196 and
203. Robel and Johnson both filed Statement of Financial Interest Forms for
the calendar year 2018. See id. However, neither appellant disputes that they
failed to disclose their income from Raven Knights on their initial 2018
statement of financial interest. See Appellant’s Brief at 15. Robel did not
disclose Raven Knights, Off Duty Services, and Northumberland County as
sources of his income for the year. See id. at 13. Johnson did not disclose
Raven Knights or Chester County as a source of income. See Johnson’s Brief
at 17.
The trial court found that Robel and Johnson caused harm under the
Ethics Act by failing to “report several thousand dollars, over $36,000 as
alleged, in outside income as a security guard.” Trial Court Opinion,
1/24/2022, at 3. Specifically, the trial court reasoned that Robel and Johnson’s
failure to disclose their employment by Raven Knights harmed the “important
goal of preserving public confidence in its public officials[.]” See id. at 4.
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Johnson and Robel argue that their actions did not threaten the harm or
evil the statute seeks to prevent. See Appellant’s Brief at 21. They argue the
statute’s purpose is to provide guidance to public officials to prevent financial
conflicts of interest. See id. Further, they note that the State Ethics
Commission’s guidelines allow for a period to rectify deficient filings once they
are discovered. See 51 Pa. Code § 19.3.
Johnson and Robel highlight that they filed amended statements that
disclosed their employment by Raven Knights after they were charged in this
matter. See Appellant’s Brief at 24-30; See N.T. 7/13/21, Vol. 2 of 3, at 196-
99. The Executive Director of the State Ethics Commission testified that the
statute is not intended to be punitive, and that, in certain situations, filers are
notified of deficiencies in their forms and given time to rectify them. See N.T.
7/14/21 at 75-78. Neither Robel nor Johnson was notified of the deficiencies
in their forms prior to being charged. See id. They argue that their efforts to
amend their forms once charged further indicate the lack of their intent to
cause harm. See Appellant’s Brief at 24.
The Commonwealth argues on appeal that Robel and Johnson’s actions
do not constitute de minimis infractions because of the amount of
compensation they received from Raven Knights. See Commonwealth’s Brief
at 8. However, the statement of financial interest form does not require filers
to disclose the amount of income received, only the sources of income over
$1,300. See, e.g., Commonwealth’s Exhibit C-32. This absence of any
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requirement to report the amount of income undercuts the Commonwealth’s
argument that the amount of undisclosed income is sufficient, by itself, to
justify a finding of actual harm.
Rather, we conclude that under the circumstances of this case, the
Commonwealth was required to identify some reason why the undisclosed
source of income could lead a reasonable citizen to question whether Robel
and Johnson’s performance of public duties was improperly influenced. We
decline to opine on whether there exists an amount of income that is sufficient,
by itself, to establish actual harm under the Ethics Act; we merely hold that
the amounts at issue here are not so great as to obviate the need to identify
a nexus between the undisclosed source and a defendant’s public duties in
order to defeat a claim that a violation of the Ethics Act was de minimis.
Neither the trial court nor the Commonwealth identify any such nexus.
See Trial Court Opinion, 1/24/2022, at 4; Commonwealth’s Brief at 12-13.
Further, our review of the record reveals no evidence of such a nexus. Johnson
and Robel’s public duties did not involve any obvious authority, discretionary
or otherwise, involving the pipeline or Raven Knights. Under these
circumstances, we conclude the trial court abused its discretion in finding that
the appellants caused actual harm to the public by failing to disclose their
employment with Raven Knights in their initial filings.
To the extent the trial court’s determination that there was harm caused
by Robel and Johnson rests on the jury’s guilty verdict, we conclude that
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reasoning to be an abuse of discretion as well. The statute governing de
minimis infractions is clear that it is the court’s duty, not the jury’s, to
determine whether an infraction is to be deemed de minimis. See 18 Pa.C.S.A.
§ 312.
We do not reach the merits of Robel and Johnson’s second issue on
appeal, regarding the sufficiency of the evidence, as it is simply an alternative
argument to the issue we have already resolved. Appeals consolidated.
Convictions vacated.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 11/22/2022
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