Com. v. Goodco Mechanical, Inc.

2023 Pa. Super. 32, 291 A.3d 378

• Court: Superior Court of Pennsylvania
• Decided: February 28, 2023
• Docket: 634 WDA 2021
• Status: Published

Opinion

J-A18034-22

2023 PA Super 32

COMMONWEALTH OF PENNSYLVANIA : IN THE SUPERIOR COURT OF : PENNSYLVANIA : v. : : : GOODCO MECHANICAL, INC. : : Appellant : No. 634 WDA 2021

Appeal from the Judgment of Sentence Entered April 26, 2021 In the Court of Common Pleas of Clearfield County Criminal Division at No(s): CP-17-CR-0000123-2020

COMMONWEALTH OF PENNSYLVANIA : IN THE SUPERIOR COURT OF : PENNSYLVANIA : v. : : : SCOTT CAMERON GOOD : : Appellant : No. 796 WDA 2021

Appeal from the Judgment of Sentence Entered April 26, 2021 In the Court of Common Pleas of Clearfield County Criminal Division at No(s): CP-17-CR-0000124-2020

BEFORE: STABILE, J., MURRAY, J., and McLAUGHLIN, J.

OPINION BY McLAUGHLIN, J.: FILED: FEBRUARY 28, 2023

Scott Cameron Good and his construction company, Goodco Mechanical,

Inc. (“Goodco”; collectively with Good, “Appellants”), appeal from the

judgments of sentence imposed following their pleas of guilty to theft by

failure to make required disposition of funds received, 18 Pa.C.S.A. § 3927.

Appellants argue that their charges were based on violations of the Prevailing J-A18034-22

Wage Act (“PWA”),1 over which they contend the court lacked jurisdiction; the

PWA is unconstitutionally vague as a basis for prosecuting theft; and criminal

prosecution in the Court of Common Pleas offended their procedural due

process rights. Good, individually, also brings challenges to the court’s

exercise of its discretion at sentencing. We affirm.

I. Factual and Procedural History

Good is the owner of Goodco, a construction company that employs

roughly 60 people. As the result of a grand jury investigation, the

Commonwealth, through the Office of the Attorney General (“OAG”), filed

criminal complaints charging Good and Goodco with numerous crimes

including theft by failure to make required disposition of funds received. The

Commonwealth alleged that Appellants had directed employees working on

public construction projects subject to the PWA to record some of their hours

at a lower pay rate than that properly applicable under the PWA.2

The PWA requires contractors working on projects subject to its

strictures to pay, at minimum, a prevailing minimum wage for a given job

classification. See 43 P.S. § 165-5. The rates vary by locality and are set by

the Department of Labor and Industry (“DLI”). They also include contributions

____________________________________________

1 Act of Aug. 15, 1961, P.L. 987, as amended, 43 P.S. §§ 165–1 to 165–17.

2 See 43rd Statewide Investigating Grand Jury Presentment No. 16 (“Presentment”), at 2; Criminal Complaint Affidavit of Probable Cause (incorporating Presentment).

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for employee benefits. See id. at §§ 165-2.1, 165-7. The scheme allowed

Good and Goodco to bid projects with lower wage and fringe benefits costs. 3

The Commonwealth subsequently filed Informations charging Good and

Goodco with one count of deceptive business practices and 27 counts each of

theft by unlawful taking, theft by deception, receipt of stolen property, and

failure to make required disposition of funds received.4 The Commonwealth

additionally charged Good with perjury, false swearing, and tampering with

public records.5 Regarding the charges for theft by failure to make required

disposition of funds received, the Informations alleged that between October

2014 and March 2019, Good and Goodco had failed to remit “required wages

and fringe benefits” owed to 27 Goodco employees. See Information, Good,

2/3/20; Information, Goodco, 2/3/20. The amounts due the victims totaled

nearly $65,000. Id.

The parties engaged in plea negotiations, and the Commonwealth

offered to withdraw all other charges if Good pleaded guilty to tampering and

paid restitution and fines of approximately $75,000. N.T., 5/8/20, at 4-5. The

court refused to accept the plea deal. Id. at 5-6. The Commonwealth made a

second offer under which it would nol. pros. all other charges if Good pleaded

guilty to theft by failure to make required disposition of funds received, paid ____________________________________________

3 See Presentment at 2.

4 Respectively, 18 Pa.C.S.A. §§ 4107(a)(6), 3921(a), 3922(a)(1), 3925(a), and 3927(a).

5 18 Pa.C.S.A. §§ 4911(a)(1), 4903(a)(1), and 4902(a), respectively.

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approximately $65,000 in restitution, and served five years of probation. Mot.

for Recusal, 11/17/20, at Ex. B. The court rejected this deal as well. Id.

Appellants filed a Motion for Recusal based on the court’s refusal of the

negotiated plea deals. Appellants argued the court’s rejections were

“manifestly unreasonable and [show] ill will toward Mr. Good and Goodco” and

that the court had “pre-judged this case before hearing any evidence and has

a pre-determined sentence in mind.” Id. at ¶¶ 32-33. At a hearing on the

motion, the court stated that it had rejected the plea agreements because “if

a message is going to be sent to other contractors that a period – the [c]ourt

would accept a period of incarceration.” N.T., Hearing, Mot. for Recusal,

12/14/20, at 7.

The court denied the motion. The court stated it did “not feel that either

of the proposed plea terms serve justice[,] considering both [d]efendants

[were] accused of theft of nearly $65,000.” Opinion and Order, 1/18/21, at 3.

The court also observed that “if Good were to plead guilty, he would accept

the criminal affidavit as true, which alleges Good had previously been caught

failing to pay prevailing wages, and Good was warned he would be charged

criminally if it occurred again.” Id. The court observed that the previously

proposed plea agreements would have resulted in a complete dismissal of

charges against Goodco, and a dismissal of most of the charges against Good,

including felony charges that had a standard sentencing range of incarceration

of up to nine months per count. Id. at 3-4.

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The court also rejected the claim that it had pre-determined that it would

only accept a plea that would allow a sentence of incarceration:

[W]hile this Court may have discussed incarceration as an appropriate sentence to a guilty plea, that was done based solely on the fact that Good would be making a total admission of guilt. Lengths of incarceration, amount of fines or restitution, number of charges and which specific charges of the information were not discussed by this Court. Also, this Court has in no way implied what sentence would be given if [Appellants] were to go to trial and be convicted. This Court merely responded to counsel’s specific request for what this Court believes was an appropriate sentence based on the facts as presented in the criminal affidavit. In no way has this Court implied it would refuse to listen to any mitigating or aggravating factors presented by the parties, nor has this Court alleged it would refuse to hold a fair and impartial sentencing hearing if a guilty plea was entered by either [Good or Goodco].

Id. at 4-5.

The parties later presented to the court a third plea agreement, under

which Appellants would plead guilty to theft, Good would pay restitution, and

the sentences would be left to for the court to determine. At a conference,

after indicating it would accept the plea deal, the court set forth its approach

to white collar crime:

One of my, I guess I could call them, pet peeves over many years of doing this, both as a prosecutor and as judge, is white-collar crime, all right. That is something that has always gotten my attention, you know, when people steal through business and whatnot; and that’s something I’ve always been very tough on.

Of course, it goes without saying people who abuse children or abuse women are at the top of that list, but not too far down the list is white-collar crime.

So I don’t want Defense counsel to think that I’ve got some kind of grudge on Mr. Good, who I’ve never met in my life, or Goodco

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or anything about this company. The way I’m handling this case is very consistent with the way that I have dealt with white-collar crime cases, you know, particularly where somebody is going to plead guilty.

N.T., Status Conference, 3/10/21, at 8-9.

The parties completed written Negotiated Plea Agreement and Guilty

Plea Colloquy forms. Good’s written colloquy stated that he would plead guilty

to five counts of theft by failure to make required disposition of funds received,

graded as a first-degree misdemeanor, and pay restitution of $64,157.09, with

the sentence left open for the court. Negotiated Plea Agreement and Guilty

Plea Colloquy, Good, 3/19/21, at 1-2. The written colloquy for Goodco stated

that it would plead guilty to one count of theft by failure to make required

disposition of funds received, graded as a first-degree misdemeanor, and the

resulting sentence would be up to the court. Negotiated Plea Agreement and

Guilty Plea Colloquy, Goodco, 3/19/21, at 1-2. Both colloquies stated the

maximum sentence per count was five years’ incarceration and a $10,000

fine.

Both colloquies also indicated Appellants’ understanding that the issues

on which they could obtain appellate review would be limited, once they

pleaded guilty, to challenges to the jurisdiction of the court, the validity of the

pleas, the legality of the sentences, and the effectiveness of counsel. Guilty

Plea Colloquy, Good, at 5; Guilty Plea Colloquy, Goodco, at 5. Good circled

“Yes,” on both forms, in response to the question. Id. The Commonwealth

filed Amended Informations in accordance with the plea agreements.

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Good then entered the pleas in open court on his own behalf and on

behalf of Goodco. N.T., Plea and Colloquy, 3/19/21, at 3. The court noted

restitution was set at $64,157.09. Id. at 5. Good acknowledged that he had

read and understood the plea agreements. Id. at 10. He also stated he

understood the factual basis for the pleas and the nature of the charges. Id.

at 11-12. The court asked defense counsel if he had reviewed with Good the

factual basis for the pleas, and counsel responded in the affirmative. Id. at

14. Defense counsel also said he had explained to Good the elements of theft

by failure to make required disposition of funds received. Id.

The court accepted the guilty pleas and ordered a pre-sentence

investigation report (“PSI”). At sentencing, the court stated it had reviewed

the probation office’s recommendation, Appellants’ sentencing memorandum,

and over 40 character letters. N.T., 4/26/21, at 3, 7, 8. It admitted into

evidence Good’s nine-page sentencing memorandum and the character

letters, which it said was probably the most letters it had ever received for a

sentencing. Id. at 7, 17-18. The Commonwealth informed the court that Good

had paid the full $64,157.09 in restitution. Id. at 4.

Appellants then presented three character witnesses who spoke to

Good’s integrity, work ethic, character, and good reputation in the community,

particularly among his employees. Id. at 8-16. Good exercised his right to

allocution, thanked the community and Goodco’s employees for their support,

and apologized for causing hardship. Id. at 17-19.

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Defense counsel argued that the case involved no threat of serious

harm, and the victims had been fully compensated. Id. at 20. Counsel argued

that Good had accepted responsibility, admitted his guilt, and sold assets and

used a line of credit to pay restitution “to make sure that he could make the

victims whole.” Id. at 21. Counsel argued Good has no history of delinquency

or criminal activity, and that a sentence of confinement would cause excessive

hardship on his businesses and employees. Id. at 20. Counsel also argued

there would be no risk of reoffense. Id. at 21. Counsel pointed out that the

PSI recommended probation. Id. at 19-20.

The court asked whether Appellants agreed with the contents of the PSI,

and in particular Good’s income, and defense counsel said they did. Id. at 22.

It then noted that Good had pleaded guilty to five counts of theft graded as a

first-degree misdemeanor, which carried an offense gravity score of 3, and

that Good had no prior criminal history. Id. at 22. The court noted the

guidelines ranges and confirmed that the Commonwealth was not seeking a

sentence in the aggravated range. Id. at 23. It then stated that it would not

impose an aggravated-range sentence:

Okay. So, you know, I put a bunch of thought into this and that I think that a pretty good argument could be made for sentencing him in the aggravated range, but I’ve decided not to go there. All right. I’ve decided that sticking with the standard range, I think would be appropriate.

Id.

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The court noted the maximum fine for a first-degree misdemeanor is

$10,000. Id. at 25-26. It also noted that the probation department had

recommended that Goodco’s sentence be fines only, and that Goodco had

pleaded guilty to only one count. Id. at 26.

The court then sentenced Good on counts one through four to 30 days

to 6 months minus a day of incarceration. On count five it imposed a sentence

of three years of probation. The court ordered Good to serve the sentences

consecutively, resulting in an aggregate period of incarceration of 120 days to

24 months minus 4 days. The court also ordered him on each count to pay a

fine of $750 and complete 200 hours of community service. It also required

him to pay restitution to each of the victims. Id. at 28-29. Goodco received a

sentence of a fine of $10,000 and paying the costs of prosecution.

Good filed a post-sentence motion seeking a modification of his

sentence. At a hearing on the motion, the court acknowledged that it had

ordered PSIs prior to sentencing, that Good had presented character letters,

addressed the court, apologized, pledged to help the victims, paid a large

amount of restitution “so that the victims can be made whole,” and asked for

a probationary sentence. N.T., 6/11/21, at 11. The court denied the motion.

Appellants filed notices of appeal.6

Appellants raise the following issues:

6 As Goodco did not file a post-sentence motion, it filed its notice of appeal

while Good’s post-sentence motion was pending in the trial court.

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A. Should Mr. Good and Goodco’s convictions be vacated because the trial court lacked jurisdiction over this prosecution?

B. Should Mr. Good and Goodco’s convictions be vacated because the Prevailing Wage Act, used in combination with the theft statutes, is unconstitutionally vague as applied to this case?

C. Should Mr. Good and Goodco’s convictions be vacated because the Commonwealth violated their procedural due process rights?

D. Should Mr. Good’s sentence be vacated because the trial court failed to state sufficient reasons in the record justifying its sentencing decision?

E. Should Mr. Good’s sentence be vacated because the trial court failed to consider relevant sentencing criteria, including the nature and circumstances of the offense and the history and character of Mr. Good?

F. Should Mr. Good’s sentence be vacated because the trial court sentenced Mr. Good based solely on the seriousness of the crime, to the exclusion of other relevant factors?

G. Should Mr. Good’s sentence be vacated because it was the result of bias and prejudice and not individualized sentencing decision?

H. Should Mr. Good’s sentence be vacated because the trial court abused its discretion by sentencing him consecutively?

Appellants’ Br. at 7-8 (suggested answers omitted).

II. Discussion

A. Statutory Provisions

We first provide a summary of the two statutes mainly at issue in this

appeal – the PWA and theft by failure to make required disposition of funds

received. Appellants’ first three claims involve the statutes and how they

interact with each other.

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1. The PWA

At its core, the PWA requires all contractors to pay, at minimum, the

prevailing minimum wage to workers on certain projects costing $25,000 or

more that are paid in whole or in part by public funds. See 43 P.S. §§ 165-

2(5), 165-5 (“Not less than the prevailing minimum wages as determined

hereunder shall be paid to all workmen employed on public work”). It is a

remedial statute. Borough of Youngwood v. Pa. Prevailing Wage

Appeals Bd., 947 A.2d 724, 731 (Pa. 2008). Its primary purpose is to protect

workers “employed on public work projects from substandard pay by ensuring

that they receive prevailing minimum wage.” Pa. Nat’l Mut. Cas. Ins. Co. v.

Dep’t of Labor and Indus., Prevailing Wage Appeals Bd., 715 A.2d 1068

(Pa. 1998). Such protection is necessary, as public contracts are customarily

awarded to the lowest bidder. 500 James Hance Ct. v. Pa. Prevailing

Wage Appeals Bd., 33 A.3d 555, 563 n.11 (Pa. 2011).

Pursuant to the PWA, prior to the making of any contract for work on a

public work project, the Secretary of the DLI, in consultation with an advisory

board established by the PWA, sets the prevailing minimum wages that must

be paid on that project, including contributions for employee benefits. 43 P.S.

at §§ 165-2.1, 165-7. The wages are specific to the locality where the work

will be performed, and to “each craft or classification” of the workers. Id. at

§ 165-7. The prevailing wage rates must be published in a notice prior to

bidding and included in the contract for the winning bid. Id. at §§ 165-3, 165-

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4. As payment comes due, the contractor must file written statements

certifying the amounts owed to workers under the contract. Id. at § 165-10.

The PWA also contains a provision empowering the Secretary to make

regulations for its enforcement. Id. at § 165-14; see 34 Pa.Code §§ 9.101-

9.112. Of relevance to Appellants’ arguments, the regulations define “craft”

as, “Special skills and trades which are recognized as such by custom and

usage in the building and construction industry,” and “classification” as,

“Specific categories of jobs which are performed within a ‘craft’ as defined in

this section[.]” 34 Pa.Code § 9.102. The regulations also require contractors

to maintain employment records specifying the craft and classification for each

worker. They provide that the records shall reflect the number of hours a

worker worked each day at each classification, including that if a worker

“worked in more than one craft or classification for which different rates were

payable the records shall show the number of hours in each day as aforesaid

in which he worked at the different crafts or classifications.” Id. at § 9.109.

The PWA provides multiple avenues for obtaining remedies for

violations. A worker may file a complaint with DLI within three months of an

alleged underpayment. Id. 43 P.S. § 165-11(b). Alternately, the government

entity having work performed or its financial officer may alert DLI of an alleged

violation. Id. at § 165-11(a). Regardless of who made allegations of a

violation, the Secretary is to investigate whether a violation has occurred,

including holding a hearing after providing due notice to the interested parties.

Id. at § 165-11(c).

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If the Secretary determines there was a violation but that it was

unintentional, it must allow the contractor a reasonable opportunity to

reimburse the workers (or provide adequate security for payment), “on such

terms and conditions as shall be approved by the [S]ecretary.” Id. at § 165-

11(d). If the Secretary determines a violation was intentional, the Secretary

may request the OAG recover damages in the amount of the underpayment

and notify “all public bodies” to bar the contractor from further contracts for

three years. Id. at § 165-11(e), (f). The PWA provides for appeals of the

Secretary’s determination to be heard by an Appeals Board. Id. at § 165-2.2.

Whether a violation was intentional must be proven by substantial

evidence. 43 P.S. § 165-11(h); Leonard S. Fiore, Inc. v. Com., Dep't of

Lab. & Indus., Prevailing Wage Appeals Bd., 585 A.2d 994, 996 (Pa.

1991). Substantial evidence of intentional conduct includes “acts of omission

or commission done wilfully [sic] or with a knowing disregard of the rights of

workmen resulting in the payment of less than prevailing wage rates” or a

failure to rectify conduct after notice by the Secretary. 43 P.S. § 165-11(h).

The PWA also provides for two other consequences for violations. First,

the PWA states that if a contractor falsely certifies the payment due, the

contractor is guilty of a misdemeanor and subject to a fine up to $2,500 and

imprisonment up to 5 years. Id. at § 165-10(c). Second, the PWA contains a

clause permitting a worker paid less than the amount specified in the contract

to sue. Id. at § 165-13; see also Worth & Co. v. Dep’t of Labor and

Indus., 938 A.2d 239, 245 (Pa. 2007) (acknowledging that in addition to the

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remedies under subsections 165-11(e) and (f), workers have a civil right of

action under Section 165-13).

2. Theft

The statute codifying theft by failure to make required disposition of

funds received took effect over a decade after the enactment of the PWA, in

1973. In short, it criminalizes the act of failing to properly distribute another’s

property in accordance with either an agreement or a legal obligation. See

Commonwealth v. Stetler, 95 A.3d 864, 886 (Pa.Super. 2014) (explaining

the statute “is designed to require the actor to meet the obligation under which

he undertook to collect monies or property of another”) (citation omitted)).

The statute defines the crime as follows:

(a) Offense defined.--A person who obtains property upon agreement, or subject to a known legal obligation, to make specified payments or other disposition, whether from such property or its proceeds or from his own property to be reserved in equivalent amount, is guilty of theft if he intentionally deals with the property obtained as his own and fails to make the required payment or disposition. The foregoing applies notwithstanding that it may be impossible to identify particular property as belonging to the victim at the time of the failure of the actor to make the required payment or disposition.

18 Pa.C.S.A. § 3927(a); see Commonwealth v. Morrissey, 654 A.2d 1049,

1052 (Pa. 1995) (listing the four elements of the crime as: 1) “obtaining of

the property of another; 2) subject to an agreement or known legal obligation

upon the receipt to make specified payments or other disposition thereof,” 3)

the “intentional dealing with the property obtained as the defendant’s own;

and 4) failure of the defendant to make the required disposition of the

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property”); accord Commonwealth v. Green, 162 A.3d 509, 524 (Pa.Super.

2017)).

Regarding the proof required, we have explained that the defendant

may have failed to adhere to either an agreement or a preexisting legal

obligation. See Commonwealth v. English, 597 A.2d 122, 124-25

(Pa.Super. 1991). We established that the element requiring the defendant to

“deal” with the other’s property as his own means only that the actor must

have treated the other’s property as if it were his own; it does not require the

defendant to have used the property. Wood, 637 A.2d at 1344. Finally,

although the Commonwealth must prove the defendant “intentionally” dealt

with the property as his own, the remaining elements are satisfied if the

Commonwealth proves the defendant acted intentionally, knowingly, or

recklessly. Commonwealth v. Bershad, 693 A.2d 1303, 1306 (Pa.Super.

1997), overruled on other grounds, Commonwealth v. Dixon, 985 A.2d 720,

724 (Pa. 2009).7

The theft by failure to make required disposition of funds received

statute replaced the fraudulent conversion and embezzlement sections of the

previous penal code. Commonwealth v. Coward, 478 A.2d 1384, 1386

(Pa.Super. 1984); Commonwealth v. Austin, 393 A.2d 36, 38 (Pa.Super.

1978). It is derived from Section 223.8 of the Model Penal Code (“MPC”), and

7 Dixon disapproved Bershad on the issue of venue.

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the two provisions are nearly identical. See 18 Pa.C.S.A. § 3927, Comment;

Commonwealth v. Fritz, 470 A.2d 1364, 1366 (Pa. 1983).8

The commentary to the MPC explains Section 223.8 “was designed

generally to criminalize offenses which formerly ‘arguably constitute[d] merely

a breach of contract rather than a misappropriation of property of another,’

and specifically to ameliorate the sort of confusing and unjust results which

the draftsmen saw as resulting from Pennsylvania and other jurisdictions' law

on fraudulent conversion.” American Law Institute, Model Penal Code, §

223.8, Revised Commentary at 255-56 (1980). It was drafted in direct

response to decisions such as Commonwealth v. Mitchneck, 198 A. 463

(Pa.Super. 1938), in which an employer was acquitted of fraudulent

conversion on the basis that the money he deducted from his employees’

wages did not technically belong to the employees. See id. at 259. The

commentary explains that Section 223.8 “recognizes that in some situations

one who promises to make certain payments or other disposition of property

should be punished for dealing with the property as his own.” Id. at 255-56.

The commentary cautions, however, that “[t]he challenge . . . is to distinguish

default that should be assimilated to theft from non-performance that should

be left to the traditional remedies for breach of contract.” Id.

8 See also Cummings v. Att’y Gen. of U.S., 265 F. Appx. 122, 125 (3d Cir.

2008).

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B. Jurisdiction

Appellants’ arguments begin with a claim that the trial court lacked

jurisdiction.9 They argue that where the legislature has given an

administrative agency power to adjudicate on a particular subject matter, that

jurisdiction is exclusive, and that where the legislature has enacted “a

pervasive regulatory scheme and [established] a governmental agency

possessing expertise and broad regulatory and remedial powers . . . a court

should be reluctant to interfere[.]” Appellants’ Br. at 47 (citing Sunrise

Energy, LLC v. FirstEnergy Corp., 148 A.3d 894, 903 (Pa.Cmwlth. 2016),

and quoting Feingold v. Bell of Pa., 383 A.2d 791, 793 (Pa. 1977)).

Appellants assert that the legislature has vested DLI with exclusive jurisdiction

to determine whether they have violated the PWA. Id. at 48-49 (citing 500

James Hance Ct., 33 A.3d at 555). Appellants also argue that the PWA

provides specific remedies for violations – damages and debarment – that are

preemptive of any other remedies. Id. at 43-44; Appellants’ Reply Br. at 7.

They quote the Supreme Court in Worth, as stating the PWA “is clear and

preemptive of other sections and regulations.” Appellants’ Br. at 43.

Appellants further argue this case stands in contrast to those in which

criminal prosecution follows an agency’s finding of liability under a civil statute

because here, DLI has not made an initial finding of liability. Id. at 49.

9 Appellants’ guilty pleas did not waive their challenge to the court’s jurisdiction. See Commonwealth v. Brown, 240 A.3d 970, 972 (Pa.Super. 2020).

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Appellants argue that without such a predicate finding, the Commonwealth

cannot prove they failed to pay their employees the wages required by the

PWA. Appellants cite, as persuasive authority, Glenn O. Hawbaker, Inc. v.

Dep’t of Transp., No. 138 M.D. 2021, 2022 WL 1592589, at *1 (Pa.Cmwlth.

Ct. Jan. 19, 2022) (unpublished memorandum). Appellants claim the

Commonwealth Court acknowledged in that case that when criminal wage

theft charges are rooted in the PWA, the DLI is the only body authorized to

adjudicate the matter. Appellants’ Reply Br. at 12-13.

Appellants contend the legislature could not have intended violations

under the PWA to be the basis for criminal liability because the PWA authorizes

only one criminal penalty – a misdemeanor charge for certifying a false payroll

– and limits the authority of the OAG to collecting liquidating damages.

Appellants’ Br. at 44-45; Appellants’ Reply Br. at 14-16. Appellants point to

other statutory schemes that permit both civil and criminal penalties arising

from the same transgression and argue those statutes expressly contemplate

or authorize parallel criminal punishment. Appellants’ Reply Br. at 16 n.7, 17-

18. Appellants emphasize that Pennsylvania’s Crime Code does not include an

independent wage theft statute. Appellants’ Br. at 47 n.21.

Appellants contend the instant case is the first instance in which the

Commonwealth has attempted to circumvent the DLI through criminal

prosecution for wage theft and that allowing such a prosecution will “nullify”

DLI’s role in PWA enforcement, which they consider an absurd result.

Appellants’ Br. at 45; Appellants’ Reply Br. at 16-17. And, according to

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Appellants, a wage dispute is generally a civil matter, as it is considered a

debt arising from breach of contract. Appellants’ Br. at 45. Appellants rely on

Mitchneck, 198 A. at 464, to argue that this Court has previously held that

wages are not the property of another in the context of theft statutes.

Appellants’ Br. at 45-46. Appellants claim allowing their judgments of

sentence to stand would set the precedent for “any breach of contract action

[to be] turned into a theft case.” Appellants’ Reply Br. at 17.

We received a brief from amici curiae, the four Pennsylvania chapters of

the national organization Associated Builders and Contractors, Inc.10 They

represent more than 1300 construction contractors and related firms doing

business in Pennsylvania. Their arguments echo those of Appellants. Amici

stress this prosecution is unprecedented, as they claim “no construction

contractor has ever before been criminally prosecuted for allegedly

misclassifying or otherwise underpaying employees in the 60-year history of

Pennsylvania’s Prevailing Wage Act.” Amici Br. at 5. Amici argue there are 13

states, including Pennsylvania, that have enacted prevailing wage laws that

provide for only civil penalties for wage underpayments or misclassifications.11 ____________________________________________

10 The four Pennsylvania chapters include the Western Pennsylvania Chapter,

the Central Pennsylvania Chapter, the Eastern Pennsylvania Chapter, and the Keystone Chapter. Goodco is a member of the Central Pennsylvania Chapter. See Amici Br. at 1 n.1.

11Amici cite: Delaware, Del. Code Ann. tit. 29, § 6960; Hawaii, Haw. Rev. Stat. § 104-25; Illinois, 820 ILCS 130/11 (from Ch. 48, par. 39s-11); Maine, Me. Rev. State. Ann. tit. 26 § 1312; Maryland, Md. Code Ann., State Fin. & (Footnote Continued Next Page)

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Amici assert that prevailing wage violations have never before been criminally

prosecuted in these states. Id. at 8-9. Amici note that criminal prosecutions

have been brought in “[a] few” other states but claim those states have

specifically enacted statutes criminalizing wage underpayments or

misclassification. Id. at 8 n.8. Amici argue that even at a federal level, criminal

prosecution of federal contractors for alleged wage underpayments has been

limited only to that brought under express legislation dedicated to preventing

wage underpayments. Id. at 8 (citing the Davis-Bacon Act, 40 U.S.C. §§

3141-3148, and the Copeland Act, 18 U.S.C. § 1875).

Amici further argue that a prima facie case for any theft under the

crimes code must be dependent on a prior finding by the DLI as to what wages

the employees was entitled. Id. at 10-11. Amici contend the OAG accepted a

guilty plea in this case “because the elements of the theft charges . . . could

not be satisfied, in the absence of any findings by the administrative agency

with exclusive jurisdiction to make such findings under the PWA, [i.e., DLI].”

Id. at 12.

Appellants’ arguments go to the subject matter jurisdiction of the Court

of Common Pleas. The question of subject matter jurisdiction is one which

Procurement, § 17-201; Missouri, Mo. Revised Stat. § 290.250; Montana, Mont. Code Ann. § 18-2-407; Nebraska, Neb. Rev Stat. § 29-436; Nevada, Nev. Rev. Stat. 338.035; Oregon, Or. Rev. Stat. § 279C.855(1); Pennsylvania, 43 P.S. § 165-10; Rhode Island, R.I. Gen. Laws § 31-13-13; Texas, Tex. Gov’t Code Ann. § 2258; and Washington, Wash. Rev. Code § 39.12.065. For New Mexico, they cite an administrative provision, N.M. Admin. Code § 11.2.12. See Amici Br. at 14.

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may be raised at any time and one over which we exercise de novo and

plenary review. In re Admin. Ord. No. 1-MD-2003, 936 A.2d 1, 5 (Pa.

2007).

Subject matter jurisdiction refers to the court’s competency “to

determine controversies of the general class to which the case presented for

consideration belongs.” Id. It is conferred by constitution or statute. Id.

Pennsylvania’s Constitution imbues the Courts of Common Pleas with

“unlimited original jurisdiction in all cases except as may otherwise be

provided by law.” Pa. Const. Art. V, § 5(b). The General Assembly has refined

this broad grant of jurisdiction to extend to “unlimited original jurisdiction of

all actions and proceedings,” except “where exclusive original jurisdiction of

an action or proceeding is by statute or by general rule adopted pursuant to

section 50312 (relating to reassignment of matters) vested in another court of

this Commonwealth[.]” 42 Pa.C.S.A. § 931(a).13

12 Section 503 empowers the Supreme Court to provide by general rule for

the assignment or reassignment of matters among the courts and magisterial district judges and provides procedures for its doing so. See 42 Pa.C.S.A. § 503.

13 Section 931 of the Judicial Code states:

(a) General rule.--Except where exclusive original jurisdiction of an action or proceeding is by statute or by general rule adopted pursuant to section 503 (relating to reassignment of matters) vested in another court of this Commonwealth, the courts of common pleas shall have unlimited original jurisdiction of all actions and proceedings, including all actions and proceedings (Footnote Continued Next Page)

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To determine whether an agency has jurisdiction over a particular

subject matter, to the exclusion of the Courts of Common Pleas, we look to

the text of the relevant legislative enactments. See, e.g., Consol. Rail Corp.

v. City of Harrisburg, 842 A.2d 369, 377 (Pa. 2004) (finding text of Public

Utility Code gave Public Utility Commission “exclusive power” to determine the

relocation of facilities at rail-highway crossings, but not exclusive jurisdiction

over cost allocation); Hollinger v. Dep’t of Pub. Welfare, 365 A.2d 1245,

1251 (Pa. 1976) (holding text of Public Employee Relations Act gave exclusive

jurisdiction to labor relations board to determine whether an unfair labor

practice had occurred). In performing this analysis, we are guided by the

following principles of statutory construction.

When construing a statute, we must ascertain and effectuate the intent of the General Assembly in enacting the statute. 1 Pa.C.S.A. § 1921(a). In this regard, we are instructed: “When the words of a statute are clear and free from all ambiguity, the letter of it is not to be disregarded under the pretext of pursuing its spirit.” id. Thus, the best indication of the General Assembly’s intent in enacting a statute may be found in its plain language. Martin v. Commonwealth, Dep’t of Transp., Bureau of Driver Licensing, 588 Pa. 429, 438, 905 A.2d 438, 443 (2006). In addition, we are to read the sections of a statute together and ____________________________________________

heretofore cognizable by law or usage in the courts of common pleas.

(b) Concurrent and exclusive jurisdiction.--The jurisdiction of the courts of common pleas under this section shall be exclusive except with respect to actions and proceedings concurrent jurisdiction of which is by statute or by general rule adopted pursuant to section 503 vested in another court of this Commonwealth or in the magisterial district judges.

42 Pa.C.S.A. § 931(a), (b).

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construe them to give effect to all of the statute’s provisions. 1 Pa.C.S.A. § 1921(a).

White v. Conestoga Title Ins. Co., 53 A.3d 720, 731 (Pa. 2012).

We are further mindful that where general and specific statutes on the

same subject exist, “the two shall be construed, if possible, so that effect may

be given to both.” 1 Pa.C.S.A. § 1933. Only where a conflict between statutory

provisions is irreconcilable will we deem a special provision to prevail and

construe it as an exception to the general provision. Id. Even in such a case

we will not find the special provision to be an exception to the general one if

“the general provision shall be enacted later and it shall be the manifest

intention of the General Assembly that such general provision shall prevail.”

Appellants’ challenge to the Court of Common Pleas’ subject matter

jurisdiction over this prosecution is utterly meritless. The Courts of Common

Pleas may be divested of original jurisdiction only if a statute or general rule

of the Supreme Court has vested exclusive original jurisdiction in another

court. Appellants’ claim is that the Court of Common Pleas here lacked

jurisdiction because of DLI’s statutory role in PWA proceedings. But DLI is not

a “court of this Commonwealth,” and Appellants have not attempted to claim

that it is. Appellants were charged under the Crimes Code, and “all courts of

common pleas have statewide subject matter jurisdiction in cases arising

under the Crimes Code.” Commonwealth v. Gross, 101 A.3d 28, 32 (Pa.

2014) (quoting Commonwealth v. Bethea, 828 A.2d 1066, 1074 (Pa.

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2003)). Appellants have not identified anything removing that jurisdiction to

another court.

Furthermore, even if DLI were a court, the text of the PWA indicates

that it does not give DLI exclusive jurisdiction over every action touching on

the PWA’s subject matter. On its face, the PWA preserves the rights of workers

to bring civil actions for PWA violations in the Courts of Common Pleas. 43

P.S. § 165-13. It also creates a specific criminal offense for falsely certifying

payrolls. Id. at § 165-10(c). The very language of the PWA itself vests

tribunals other than DLI with original jurisdiction to enforce its provisions.

Indeed, Appellants have not brought to this Court’s attention any portion

of the text of the PWA that we might construe as vesting DLI with exclusive

jurisdiction over all matters involving the PWA, or more to the point, over

criminal cases. “In the absence of a clear legislative mandate, laws are not to

be construed to decrease the jurisdiction of the courts.” Beneficial

Consumer Disc. Co. v. Vukman, 77 A.3d 547, 552 (Pa. 2013). Without a

clear legislative mandate to the contrary, we will not construe the mere

existence of the PWA as indicating the General Assembly’s intent to decrease

the jurisdiction of the Courts of Common Pleas. See id.

Nor do we find an obvious or irreconcilable conflict between the text of

the PWA and the theft crime at issue. We are therefore obliged to give full

force and effect to both. 1 Pa.C.S.A. §§ 1928(c), 1932, 1933. That there is a

more specific statute prescribing a civil penalty for a failure to pay prevailing

wages does not create a conflict with the imposition of criminal punishment

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flowing from the terms of a more general theft statute that, in appropriate

circumstances, can apply to wage theft. In Int. of R.A.F., 149 A.3d 63, 67

(Pa.Super. 2016); see also Bershad, 693 A.2d at 1308-09 (finding no

conflict between charge for theft by failure to make required disposition of

funds received and a penal provision of the Tax Reform Code).

The cases cited by Appellants do not declare that DLI has exclusive

jurisdiction over the subject matter of the PWA. In 500 James Hance Ct.,

the Pennsylvania Supreme Court described DLI’s Bureau of Labor Law

Compliance as “a unit of [DLI], which is the Commonwealth agency charged

with administration and enforcement of the Pennsylvania Prevailing Wage

Act.” 33 A.3d at 557. In so stating, the Court was not making a

pronouncement regarding jurisdiction, but simply identifying the plaintiff in

the case. Appellants also misquote Worth. That case did not hold that the

PWA “is clear and preemptive of other sections and regulations,” but held that

the section of the PWA requiring payment to contractors despite

subcontractors’ violations was unambiguous and preemptive of other,

allegedly conflicting, sections of the PWA – primarily § 10(b) – and PWA

regulations. Worth, 938 A.2d at 245 (“Because the language of § 10(a) is

clear and preemptive of other sections and regulations, we cannot disregard

it”). Worth did not involve any conflict between the PWA and another statute.

The Commonwealth Court’s decision in Hawbaker – which is not

controlling here, as decisions of the Commonwealth Court are only persuasive

authority in this Court – does not indicate otherwise, even though it addresses

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a “jurisdictional” challenge regarding the PWA. There, Hawbaker, a highway

construction contractor, had pleaded nolo contendere to four counts of theft

for failure to make required disposition of funds received for withholding fringe

benefit payments from its employees in violation of, among other things, the

PWA. Hawbaker, 2022 WL 1592589, at *1. The Department of

Transportation (“DOT”) instituted debarment proceedings based on the

contractor’s plea of nolo contendere to theft charges rooted in PWA

violations,14 and the contractor turned to the Commonwealth Court, seeking

contempt sanctions or a preliminary injunction.

The Commonwealth Court granted the preliminary injunction. It

questioned DOT’s “jurisdiction” to institute debarment proceedings, pointing

out that the PWA provides for debarment mechanisms through DLI, not DOT.

See id. at *8. The court observed that while DOT regulations provide for

debarment proceedings based on a plea of no contest to theft, the theft

charges were based on PWA violations, and unlike the DOT regulations, the

PWA requires a finding of intentional violations before debarment. Therefore,

in Hawbaker, the Commonwealth Court did not express an opinion on the

jurisdiction of the court of common pleas over criminal proceedings. That was

14 Like Appellants, Hawbaker had been charged with “theft by failure to make

required disposition of funds received, in violation of Section 3927 of the Crimes Code, 18 Pa.C.S. § 3927.4” Hawbaker, 2022 WL 1592589, at *1. The Complaint in that case alleged “that for calendar years 2015 through 2018, Hawbaker withheld fringe benefit payments from its employees in violation of the PWA and the Davis-Bacon Act.” Id. Hawbaker’s nolo contendere plea to the charges was not at issue in the appeal to the Commonwealth Court.

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not the issue. Rather, the question was whether DOT could conduct debarment

proceedings for PWA violations.

Appellants argue this Court should not apply the theft statute to

agreements or legal obligations created by the PWA, because doing so would

interfere with the “pervasive regulatory scheme and governmental agency

possessing expertise and broad regulatory and remedial powers.” See

Appellants’ Br. at 48 (quoting Feingold, 383 A.2d at 793). Feingold was

decided based on the rule requiring exhaustion. An aggrieved party is required

to exhaust administrative remedies before bringing the matter to court. See

Jackson v. Centennial Sch. Dist., 501 A.2d 218, 220 (Pa. 1985); Ostrov

v. I.F.T., Inc., 586 A.2d 409, 413 (Pa.Super. 1991). Our Supreme Court has

stated:

When the Legislature has seen fit to enact a pervasive regulatory scheme and to establish a governmental agency possessing expertise and broad regulatory and remedial powers to administer that statutory scheme, a court should be reluctant to interfere in those matters and disputes which were intended by the Legislature to be considered, at least initially, by the administrative agency.

Feingold, 383 A.2d at 793. The Supreme Court has acknowledged that it has

been inconsistent in characterizing the rule of exhaustion as jurisdictional or

merely a prerequisite to a court’s exercise of jurisdiction. White, 53 A.3d at

726 n.11.15 ____________________________________________

15 In both White and Jackson, the Supreme Court discussed the rule requiring exhaustion in concert with Section 1504 of the Statutory (Footnote Continued Next Page)

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The rule requiring exhaustion is not absolute, as it does not apply when

the administrative remedy is inadequate. White, 53 A.3d at 726 n.10. “[T]he

rule should be applied only where the available administrative remedies are

adequate with respect to the alleged injury sustained and the relief

requested.” Feingold, 383 A.2d at 795-96 (finding rule requiring exhaustion

did not apply because Public Utility Commission had no authority to award

damages); see also Frye Constr., Inc. v. City of Monongahela, 584 A.2d

946, 948-49 (Pa. 1991) (finding rule requiring exhaustion did not apply when

jurisdiction was not exclusive and zoning regulations did not provide injunctive

power). Furthermore, the existence of a statutory remedy does not foreclose

a distinct statutory cause of action. See White, 53 A.3d at 734 (holding Title

Insurance Act foreclosed common law claims but did not prevent plaintiff from

bringing claims under Unfair Trade Practices and Consumer Protection Law).

The rule requiring exhaustion of administrative remedies does not

present a jurisdictional bar to the instant criminal prosecution. First, the rule

applies to actions based in common law or equity, rather than in a statute;

here, the Commonwealth of Pennsylvania brought charges under the Crimes

Code. This is a separate statute, duly enacted by the legislature, which must

be given full effect. See White, 53 A.3d at 734.

Construction Act, which provides that the existence of a statutory remedy is presumed to be exclusive of any other remedy, such as in common law or equity, unless the legislature states otherwise. See White, 53 A.3d at 731- 32; Jackson, 501 A.2d at 220.

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Second, the civil avenues for relief provided by the PWA are not

“adequate with respect to the alleged injury sustained and the relief

requested.” The PWA is remedial. Borough of Youngwood, 947 A.2d at

731.16 The goal of the PWA is to protect workers, and the remedies are limited

to three-year disbarment, damages in the amount that the contractor should

have paid in the first place, and, if a payroll was falsely certified, prosecution

for a misdemeanor offense.

In contrast, the goals of criminal punishment are retribution and

deterrence. See Kennedy v. Mendoza-Martinez, 372 U.S. 144, 168 (1963).

In addition, in a criminal proceeding, the prosecution brings charges on behalf

of the entire citizenry of the state; no such avenue for relief is provided to

Pennsylvania’s citizens under the PWA. See 18 Pa.C.S.A. § 104 (stating one

general purpose of Crimes Code is “[t]o forbid and prevent conduct that

unjustifiably inflicts or threatens substantial harm to individual or public

interest”).

Although criminal punishment is more severe than its civil counterpart,

guilt must be found by a jury beyond a reasonable doubt, which is a more

stringent standard than utilized in administrative proceedings. See Jordan v.

Gore, 431 A.2d 300, 303 (Pa.Super. 1981). These same differences lead us

to conclude that the rule requiring exhaustion does not apply to bar criminal ____________________________________________

16 See also Hudson v. United States, 522 U.S 93, 99, 103-04 (1997) (noting that the authorization of administrative agency to impose penalty is prima facie evidence that the penalty is a civil sanction, and that money penalties and debarment have not historically been viewed as punishment).

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prosecution where only civil remedies exist, at least insofar as there is no

legislative directive on point.

We additionally differentiate Appellants’ argument that the

Commonwealth cannot make out a prima facie case of liability under the PWA

without a prior adjudication by DLI,17 from the doctrine of “primary

jurisdiction.” This doctrine comes into play “where the administrative agency

cannot provide a means of complete redress to the complaining party and yet

the dispute involves issues that are clearly better resolved in the first instance

by the administrative agency charged with regulating the subject matter of

the dispute.” Ostrov, 586 A.2d at 413. Under this doctrine, a court will “stay[]

judicial action until the administrative body has expressed its views upon such

collateral issues as are within its competence.” E.L.G. Enters. Corp. v. Gulf

Oil Co., 435 A.2d 1295, 1296–97 (Pa. 1981).

The doctrine of primary jurisdiction is decidedly a misnomer, as the

decision to bifurcate a civil proceeding in court and await a determination by

an agency is not a jurisdictional issue, but one of judicial discretion. See

White, 53 A.3d at 728 n.14. Furthermore, our Supreme Court has cautioned

that a trial court should only defer to an agency’s primary jurisdiction where

“it is a complex matter requiring special competence,” and that courts should

not be too hasty in referring a matter to an agency “whenever a controversy

17 We note the contradiction between Appellants’ arguments that DLI has exclusive subject matter jurisdiction and that the trial court has jurisdiction after the Secretary makes an adjudication.

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remotely involves some issue falling arguably within the domain of the

agency’s expertise,” as “[e]xpertise is no talisman dissolving a court’s

jurisdiction.” Elkin v. Bell Tel. of Pa., 420 A.2d 371, 377 (Pa. 1980). The

court must also consider whether the issue is currently before the agency, and

the delay that would come from bifurcating the action. See E.L.G. Enters.

Corp., 435 A.2d at 1297.

Thus, Appellants’ argument that the trial court must defer to a DLI

adjudication, and the Commonwealth must await adjudication in DLI

proceedings prior to instituting criminal charges, is not a jurisdictional

argument. We note that the court, and not a jury, acts as a gatekeeper to

determine whether the Commonwealth can present prima facie evidence of

defendant’s legal obligation. Moreover, contractor-defendants are free to bring

the complexities of the PWA or contradictions in DLI guidance as a defense to

the mens rea required by the theft statute.

Finally, we reject Appellants’ contentions that allowing criminal

prosecution for failure to pay prevailing wages will “nullify” DLI’s role in PWA

enforcement, erode the distinction between criminal actions and breach of

contract cases, and be contrary to this Court’s precedent in Mitchneck. Policy

concerns cannot control our decision when we are able to read the two

statutes compatibly.

Further, as discussed above, the statute for theft by failure to make

required disposition of funds received was enacted in specific response to

Mitchneck. It was intended to provide an avenue to impose criminal

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punishment on conduct previously pigeon-holed as breach of contract.

Furthermore, workers already can bypass DLI and bring their civil PWA claims

in the Courts of Common Pleas, see 43 P.S. § 165-13, and prosecutors already

have discretion to decide whether to withhold charges for theft by failure to

make required disposition of funds received if the conduct only makes out a

breach of contract claim. See Commonwealth v. Stipetich, 652 A.2d 1294,

1295 (Pa. 1995). In addition, given the higher burden of proof necessary to

prove the criminal charge, we are unpersuaded that the OAG will investigate

and prosecute each allegation of a PWA violation as theft such that the

administrative scheme regulated by DLI will be nullified.

C. Vagueness and Due Process

In their second and third issues, Appellants raise two constitutional

challenges: a vagueness challenge and a due process challenge. We first must

determine whether Appellants’ guilty pleas waived these issues. When a

defendant enters an “open” guilty plea – one where there is no plea agreement

as to the sentence, such as occurred here – the defendant waives all issues

on appeal except the jurisdiction of the court, the validity of the guilty plea,

the legality of the sentence, and the discretionary aspects of the sentence.

See Commonwealth v. Brown, 240 A.3d 970, 972 (Pa.Super. 2020).

Neither constitutional claim relates to the jurisdiction of the court, the

validity of the plea, or the discretionary aspects of sentencing. The only

possible category that could save them from waiver is the legality of the

sentence, which is non-waivable. Whether a claim implicates the legality of a

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sentence is a question of law. Eisenberg, 98 A.3d at 1276. Our scope of

review is plenary, and our standard is de novo. Commonwealth v.

Rodriguez, 174 A.3d 1130, 1147 (Pa.Super. 2017).

In Commonwealth v. Prinkey, 277 A.3d 554 (Pa. 2022), the

Pennsylvania Supreme Court recently explained what constitutes an illegal

sentence. The Court reviewed at length its precedents and distilled four types

of claims that implicate the legality of a sentence. See id. at 561-62. The

Court noted that for all four categories, “the inquiry is whether, assuming the

appellant’s claim prevails, the result would be that the trial court lacked

authority to impose the sentence at issue.” Id. at 563. The first type is “a

claim that a sentence was imposed pursuant to a facially unconstitutional

sentencing statute[.]” Id. at 562. The second type “encompasses allegations

that a sentence was imposed without the fulfillment of statutory preconditions

to the court’s sentencing authority.” Id. The third type is a claim of a

substantive constitutional restriction on a court’s power to apply the statutory

sentence in the circumstances at bar. Id. The fourth type is a claim that “the

statutory support for the underlying conviction is void ab initio.” Id. at 563.

The Court explained that even though the fourth category is most directly

targeted at the conviction, such an argument ultimately goes to the legality

of the sentence because “[t]he alternative is for courts to accept as legal a

sentence which is grounded upon an illegal conviction.” Id. (quoting

Commonwealth v. Spruill, 80 A.3d 453, 464 (Pa. 2013) (Saylor, J.,

concurring)).

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In their vagueness challenge, Appellants’ claim that the PWA, “used in

combination with the theft statutes, is unconstitutionally vague as applied to

this case[.]” Appellants’ Br. at 50. They claim that the PWA had never been

used as a basis for a criminal prosecution and therefore “the average citizen”

had no notice that criminal liability could result from a PWA violation. Id. at

53. They further claim the lack of clear guidance on how wages should be paid

under the PWA renders it unconstitutionally vague in the criminal context.18

Appellants’ vagueness challenge is not a challenge to the legality of the

sentence. Appellants were convicted of theft, and Appellants do not challenge

the theft statute as vague. Rather, they argue the PWA is unconstitutionally

vague “as applied” here because, according to Appellants, no statute or rule

sets forth a specific rate for a particular worker on a given project, and DLI

has resolved such disputes on a case-by-case basis. They do not challenge

the statute of conviction – theft. Their challenge does not implicate the legality

of their sentences. Appellants therefore waived it when they pleaded guilty.

Appellants next claim the convictions violated due process because

Appellants were deprived of their statutory rights under the PWA to notice, a

18 Amici argue criminal prosecution for prevailing wage violations is unfair to

contractors because “the laws and regulations governing prevailing wage requirements are very complicated and difficult for employers to navigate” Amici Br. at 2. According to Amici, prevailing wage projects impose “dozens or even hundreds of related special job categories, grades of sub-groups, fine distinctions of fringe benefits, and largely unwritten jurisdictional work rules.” Id. at 7. Amici claim the prevailing wage scheme is particularly confusing to non-union contractors, which constitute the majority of the construction industry’s employees in Pennsylvania. Id. at 6-7.

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hearing before L&I, and an opportunity to cure. They claim that a criminal

proceeding is not an “orderly proceeding adapted to the nature of this case,”

as required by the Due Process Clause. Id. at 60 (cleaned up). This argument

goes to alleged defects in Appellants’ convictions, and not the imposition of

sentence. Therefore, we find Appellants’ constitutional due process challenge

also does not implicate the legality of Appellants’ sentences and was waived

when Appellants entered pleas of guilty.

Moreover, Appellants’ constitutional arguments are contrary to their

guilty pleas. When Appellants pleaded guilty, they admitted that they

knowingly, willfully, or recklessly failed to fulfill their legal obligations under

the PWA. They fully admitted to doing “what the Commonwealth said they

did,” i.e., the allegations made against them on the record. These allegations

include that Good had been warned previously by DLI that the use of pre-

determined ratios to under-classify workers was impermissible, and that Good

instructed his employees to continue this practice despite complaints from the

workers that the ratios did not reflect the work they performed. Their

admissions contradict Appellants’ argument that they violated the PWA

because it was too vague for them to understand, i.e., that they were deprived

of notice of the proscribed conduct. Appellants also waived their right to have

the Commonwealth prove those allegations before a jury of their peers and

the right to lodge a defense. This undermines Appellants’ argument that the

criminal prosecution violated their right to due process, i.e., their right to

notice and the opportunity to be heard.

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We find Class v. United States, 138 S.Ct. 798 (2018), distinguishable.

In that case, when pleading guilty in federal court, the defendant expressly

waived the right to appeal various issues.19 Class, 138 S.Ct. at 802. The

defendant then raised on appeal an argument that the statute prohibiting the

possession of firearms, under which he was convicted, violated the Second

Amendment. The Supreme Court observed that “[t]he agreement said nothing

about the right to raise on direct appeal a claim that the statute of conviction

was unconstitutional.” Id. The Court also noted the defendant’s argument had

nothing to do with the substance of his guilty plea, noting the “constitutional

claims . . . do not contradict the terms of the indictment or the written plea

agreement.” Id. at 804.

Here, unlike Class, when Appellants pleaded guilty, they expressly

waived the right to challenge on appeal any issue except the court’s

jurisdiction, the validity of his plea, the legality of his sentence, and the

effectiveness of his counsel. Furthermore, Appellants’ pleas of guilty belie their

arguments that they lacked notice of the prohibited conduct or were deprived

the opportunity to be heard. Given our state’s jurisprudence in this area, and ____________________________________________

19 Class waived

(1) all defenses based upon the statute of limitations; (2) several specified trial rights; (3) the right to appeal a sentence at or below the judicially determined, maximum sentencing guideline range; (4) most collateral attacks on the conviction and sentence; and (5) various rights to request or receive information concerning the investigation and prosecution of his criminal case.

Class, 138 S. Ct. at 802.

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the factual distinction between this case and Class, we conclude that

Appellants waived their vagueness and due process issues.

Were the issues not waived, we would still find they warranted no relief.

A vagueness challenge stems from the right to due process:

Due process demands that a statute not be vague. A statute is vague if it fails to give people of ordinary intelligence fair notice as to what conduct is forbidden, or if they cannot gauge their future, contemplated conduct, or if it encourages arbitrary or discriminatory enforcement. A vague law is one whose terms necessarily require people to guess at its meaning. If a law is deficient – vague – in any of these ways, then it violates due process and is constitutionally void.

By contrast, to be valid, a penal statute must set forth a crime with sufficient definiteness that an ordinary person can understand and predict what conduct is prohibited. The law must provide reasonable standards which people can use to gauge the legality of their contemplated, future behavior.

Commonwealth v. Habay, 934 A.2d 732, 737 (Pa.Super. 2007) (quoting

Commonwealth v. Thur, 906 A.2d 552, 561 (Pa.Super. 2006)); see also

Commonwealth v. Herman, 161 A.3d 194, 204 (Pa. 2017). There is a strong

presumption that legislation is constitutional, and the party asserting

otherwise bears the burden of proof. Habay, 934 A.2d at 737-38.

“Accordingly, this Court will strike the statute in question only if [the

appellant] convinces us that it clearly, palpably and plainly violates the federal

or state constitutions.” Id. at 738 (quoting Thur).

Appellants assert the PWA is vague as applied to them. Where a party

asserts “a statute is vague as applied,” they “contend[] the law is vague in

regard to the particular conduct of the individual challenging the statute.” Id.

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In Allied Mechanical & Electrical, Inc., the Commonwealth Court

considered whether the PWA “was unconstitutionally vague regarding the

appropriate classification of laborers’ work such that the Secretary violated

Allied’s right to due process by finding that it had intentionally violated said

Act.” 923 A.2d 1220, 1228-29 (Pa.Cmwlth. 2007). The Court observed that

“neither the Act nor its regulations provide a specific definition of what tasks

constitute laborers’ tasks on any given prevailing wage project.” Id. at 1229.

It observed that the regulations provide definitions for “classification” and

“craft,” the latter of which depends on “custom and usage,” wording which the

Court had previously implemented and upheld. Id.

In addition, the Court noted that the conduct at issue that constituted a

violation of the PWA was not due to the PWA’s failure to provide a specific

definition of laborers’ tasks, but rather Allied’s use of a predetermined ratio:

. . . Allied’s violation of the Act was premised upon its utilization of a set 6:2 ratio for prevailing wage projects, regardless of the work being performed, its continued use of this ratio even after being advised by Bureau representatives that the same was improper[,] and its advice to employees to juggle their timecards but still end up with this same ratio.

Id. at 1230. At the time, Allied employed Good as Vice President and he had

been involved in the investigation. See id. at 1223-24, 1226.

We are persuaded by the Commonwealth Court’s rationale, and find it

applies equally to the case before us. Appellants complain that the PWA is

vague because the classification of workers is confusing. However, Appellants

did not simply misclassify workers, but forced workers to classify their hours

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according to a pre-determined ratio, despite the knowledge that it did not

accurately reflect the work being performed and despite having been told that

imposing such a ratio was improper. Although the regulations provide that

workers may be subject to two different classifications during a single

workday, Appellants pleaded guilty to understanding that an across-the-board

pronouncement that workers could not classify an entire day at the higher

rate of pay was impermissible. We therefore cannot countenance the

argument that Appellants did not have due notice of the prohibited conduct.

We would likewise find no merit to Appellants’ claim that they were

deprived of due process because PWA procedures were not followed.

“[P]rocedural due process is a flexible notion which calls for such protections

as demanded by the individual situation, [and] the essential requisites are

notice and meaningful opportunity to be heard.” Commonwealth, Dep’t of

Transp., Bur. of Driver Licensing v. Clayton, 684 A.2d 1060, 1064 (Pa.

1996). The hearing must be “meaningful and appropriate to the nature of the

case.” Id. at 1065 (quotation marks and citation omitted).

Appellants’ argument does not make out a claim that they did not have

due notice of the prosecution or a meaningful opportunity to be heard.

Appellants do not contend that during their prosecution, they were precluded

from arguing a defense related to the PWA in the same manner as they could

have done before the DLI. The record does not support any violation of

procedural due process in this case. Cf. Leonard S. Fiore, Inc., 633 A.2d at

1115 (holding procedural due process was violated when defendant was only

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given 20 days’ notice to justify a tax exemption after 10 years of litigation

focused on other issues, because “[d]ue process requires that notice of

hearing be reasonable in terms of opportunity to prepare to answer the issues

raised by the Commonwealth for the first time at a late stage of the litigation”).

D. Discretionary Sentencing Claims

Good lodges five challenges to the court’s exercise of discretion in

imposing sentence.20 Good argues (1) the court failed to sufficiently state the

reasons for the sentence on the record; (2) the court failed to consider all

relevant sentencing factors, and considered inappropriate factors; (3) the

court only considered, and over-inflated, the seriousness of the crime; (4) the

court’s sentence was not individualized, but pre-determined and the result of

bias; and (5) the aggregate sentence was unreasonable and excessive.

Before we reach these claims, we must assess whether Good has raised

a substantial question that the court violated a provision of the Sentencing

Code or that the sentence is contrary to the norms underlying the sentencing

process. See 42 Pa.C.S.A. § 9781(b); Commonwealth v. Mouzon, 812 A.2d

617, 627 (Pa. 2002); see also Commonwealth v. King, 182 A.3d 449, 453

(Pa.Super. 2018) (listing the requirements for this Court to reach the merits

of a discretionary sentencing claim).21 A claim that the trial court failed to ____________________________________________

20 Good did not waive his challenge to the discretionary aspects of his sentence

when he pled guilty. See Brown, 240 A.3d at 972.

21 The other requirements – a timely appeal, preservation of the issue in the

court below, and the inclusion of a Rule 2119(f) statement in the appellate brief – have all been met. See King, 182 A.3d at 453.

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state adequate reasons for the sentence on the record raises a substantial

question. See Commonwealth v. Wellor, 731 A.2d 152, 155 (Pa.Super.

1999). Likewise, a claim of excessiveness, in conjunction with a claim that the

court did not consider the relevant sentencing criteria and/or considered

improper factors, poses a substantial question. See Commonwealth v.

Dodge, 77 A.3d 1263, 1272-74 (Pa.Super. 2013). Finally, the claim that the

sentence was the result of bias and prejudice, and not individualized, also

constitutes a substantial question. See Commonwealth v. Luketic, 162 A.3d

1149, 1162 (Pa.Super. 2017). We therefore turn to the merits of Good’s

claims.

We will not disturb a sentence absent an abuse of discretion.

Commonwealth v. Walls, 926 A.2d 957, 961 (Pa. 2007). Trial courts have

broad discretion over sentencing because they are “in the best position to

determine the proper penalty for a particular offense based upon an evaluation

of the individual circumstances before it.” Mouzon, 812 A.2d at 620. “An

abuse of discretion may not be found merely because an appellate court might

have reached a different conclusion, but requires a result of manifest

unreasonableness, or partiality, prejudice, bias, or ill-will, or such lack of

support so as to be clearly erroneous.” Walls, 926 A.2d at 961 (citation

omitted).

Further, where the court has imposed a sentence falling within the

sentencing guidelines, we will only vacate and remand where it applied the

guidelines erroneously or “the case involves circumstances where the

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application of the guidelines would be clearly unreasonable.” 42 Pa.C.S.A. §

9781(c). In making this determination, we will consider:

(1) The nature and circumstances of the offense and the history and characteristics of the defendant.

(2) The opportunity of the sentencing court to observe the defendant, including any presentence investigation.

(3) The findings upon which the sentence was based.

(4) The guidelines promulgated by the commission

42 Pa.C.S.A. § 9781(d). Our scope of review is plenary, and we may review

the entire record. Walls, 926 A.2d at 961 n.2.

1. Sentencing Factors

We have reorganized Good’s issues somewhat, for ease of discussion.

Good argues the court failed to adequately consider the sentencing factors

under 42 Pa.C.S.A. § 9721(b) and whether probation was warranted pursuant

to 42 Pa.C.S.A. § 9722. Good claims the court should have concluded there

was no need for the court to impose incarceration to protect the public because

his crime was non-violent, and in his view, he presented overwhelming

evidence of his good character. He emphasizes that four of the victims

supported him at sentencing, and one of the victims informed the court that

Goodco was the best place he had ever worked. Good also argues the court

failed to consider his full payment of restitution before sentencing, his lack of

criminal record, and his capacity for rehabilitation. Good claims that while the

court referenced the PSI, the PSI did not meet the requirements as set forth

in Commonwealth v. Goggins, 748 A.2d 721, 728-29 (Pa.Super. 2000) (en

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banc). Good maintains it provided only basic information and mentioned none

of Good’s history or characteristics.

The Sentencing Code requires the trial court to follow the general

principle that the sentence “should call for confinement that is consistent with

section 9725 (relating to total confinement) and the protection of the public,

the gravity of the offense as it relates to the impact on the life of the victim

and on the community, and the rehabilitative needs of the defendant.” 42

Pa.C.S.A. § 9721(b); see Mouzon, 812 A.2d at 620. The Sentencing Code

also provides a list of factors that weigh in favor of an order of probation. See

42 Pa.C.S.A. § 9722.22 The court must also consider the mitigated, standard, ____________________________________________

22 The statute provides:

The following grounds, while not controlling the discretion of the court, shall be accorded weight in favor of an order of probation:

(1) The criminal conduct of the defendant neither caused nor threatened serious harm.

(2) The defendant did not contemplate that his conduct would cause or threaten serious harm.

...

(6) The defendant has compensated or will compensate the victim of his criminal conduct for the damage or injury that he sustained.

(7) The defendant has no history of prior delinquency or criminal activity or has led a law-abiding life for a substantial period of time before the commission of the present crime.

(8) The criminal conduct of the defendant was the result of circumstances unlikely to recur. (Footnote Continued Next Page)

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and aggravated ranges suggested by the sentencing guidelines. 42 Pa.C.S.A.

§ 9721(b); see 204 Pa.Code §§ 303.1–303.18(c).

The record reflects that the trial court held a sentencing hearing at which

Good made argument through counsel, exercised his right to allocution, and

introduced 43 character letters and three character witnesses. The court

acknowledged the recommendation of the probation office and was apprised

by the Commonwealth that Good had paid full restitution. The court

acknowledged the statutory maximum sentences, the sentencing guidelines’

ranges, and the fact that Good had no prior criminal history. The court also

stated it had read Good’s sentencing memorandum and the PSI. The court

remained engaged throughout the sentencing proceeding. When Good argued

his post-sentence motion, the court acknowledged that at the sentencing

hearing Good had apologized for his conduct, argued for a probationary

sentence, introduced character letters, and paid restitution “so that the

victims can be made whole.” N.T. at 11. On this record, we cannot conclude

the court did not consider all relevant sentencing criteria.

(9) The character and attitudes of the defendant indicate that he is unlikely to commit another crime.

(10) The defendant is particularly likely to respond affirmatively to probationary treatment.

(12) Such other grounds as indicate the desirability of probation.

42 Pa.C.S.A. § 9722.

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We find Good’s argument that his PSI was inadequate to be waived by

his failure to raise that issue in the trial court. If Good felt the PSI needed to

be supplemented, Good should have raised the issue prior to appeal. Pa.R.A.P.

302(a). The court even asked defense counsel if the PSI was adequate, and

defense counsel made no objection.

2. Statement for Reasons of Sentence

We next address Good’s argument that the court failed to state its

reasoning when imposing sentence. According to Good, the court only stated

that it had observed the number of counts to which he pleaded guilty and the

grading of the offenses, the corresponding offense gravity score, his prior

record score, and the guidelines ranges. The court also stated that it had

decided to sentence Good in the standard range of the sentencing guidelines

rather than the aggravated range. However, Good contends that other than

these statements, the court did not provide a single reason for its sentence.

Good cites 42 Pa.C.S.A. § 9721(b) and Commonwealth v. Flowers, 149

A.3d 867 (Pa.Super. 2016), for support. He argues the court’s reference to

the PSI does not prove the court considered all relevant sentencing criteria.

Good’s Br. at 74 (citing Commonwealth v. Coulverson, 34 A.3d 135, 150

(Pa.Super. 2011)). Good also argues that the court’s post-hoc explanation for

the sentence in its Rule 1925(a) opinion does not cure its failure to articulate

reasons at the time of sentencing.

The Sentencing Code requires a court to state the reasons for the

sentence imposed, in open court at the time of sentencing. 42 Pa.C.S.A. §

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9721(b); Pa.R.Crim.P. 704(C)(2). The court may meet this requirement by

indicating that it “has been informed by the pre-sentencing report[,] thus

properly considering and weighing all relevant factors.” Commonwealth v.

Ventura, 975 A.2d 1128, 1135 (Pa.Super. 2009) (cleaned up); see also

Devers, 546 A.2d at 18 (“Where pre-sentence reports exist, we shall continue

to presume that the sentencing judge was aware of relevant information

regarding the defendant’s character and weighed those considerations along

with mitigating statutory factors”); Commonwealth v. Fowler, 893 A.2d

758, 766 (Pa.Super. 2006) (finding requirement for reasoning satisfied where

court imposed sentence in the standard range and court stated it read the

PSI, listened to the facts presented for sentencing, and the appellant’s guilty

plea).

Indeed, the Supreme Court has explained that a statement of reasons

is not necessary where a PSI exists due to the presumption it creates that the

court was fully informed:

Having been fully informed by the [PSI], the sentencing court’s discretion should not be disturbed. This is particularly true, we repeat, in those circumstances where it can be demonstrated that the judge had any degree of awareness of the sentencing considerations, and there we will presume also that the weighing process took place in a meaningful fashion. It would be foolish, indeed, to take the position that if a court is in possession of the facts, it will fail to apply them to the case at hand.

Devers, 546 A.2d at 18 (emphasis added).

As discussed above, the court was apprised of all necessary facts,

through the PSI, the testimony of three character witnesses, and the letters

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of 43 other individuals who discussed their history with Good and relationship

with him. The court was engaged in the sentencing process and stated that it

had put “a bunch of thought” into its decision to sentence Good in the standard

range, rather than the aggravated range. The record demonstrates that the

court was aware of the sentencing considerations, and we therefore presume

the court applied those facts to Good’s sentence. See id. at 19 (holding that

where court had ordered PSI, reviewed character letters, and had sufficient

information, claim that court did not explain its sentence did not warrant

remand because it was not “rational to believe that the sentencing judge could

not have been so informed as to have arrived at a balanced judgment in

imposing judgment”).

The cases on which Good relies do not require remand. In Coulverson,

while we found the court’s discussion of its sentencing rationale to be cursory,

we did not decide the appeal on that basis alone. 34 A.3d at 146. Rather, we

observed “the record reveals scant consideration of anything other than victim

impact and the court’s impulse for retribution on the victims’ behalf,” and that

some of the courts statements “strongly suggest[ed] its determination that

the defendant should spend as much of his life in prison as the court could

order,” notwithstanding mitigating factors such as “the tragedy and

dysfunction underlying [the defendant’s] own life, his individual need for

effective intervention, or any rehabilitation he might achieve.” Id. at 148. We

found the 90-year aggregate sentence imposed on a 19-year-old defendant

was “manifestly excessive,” not individualized, and “clearly unreasonable.” Id.

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at 150. As discussed below in conjunction with Good’s other issues, we do not

find Good’s sentence to be manifestly excessive or that the court expressed a

desire to sentence Good to the harshest extent possible, and the record does

not reflect the court ignored the mitigating factors presented to it.

Nor does Flowers require relief. There, we vacated the sentence based

on the trial court’s failure to state any of its reasoning on the record at

sentencing. Flowers, 149 A.3d at 877. Flowers is readily distinguishable,

however, as in that case, there was no PSI, the testimony regarding

information about the defendant took only two pages of the sentencing

transcript, and the record lacked any indication the court had reviewed the

facts necessary to make a sentencing determination. Id. at 874. The record

here is extensive in comparison.

3. Impermissible Factors

Good argues the court’s Rule 1925(a) opinion shows that it overinflated

the seriousness of the crime, and that it “unlawfully sentenced [him] based

on the seriousness of allegations that were dismissed as part of the plea,”

thereby violating his right to due process. Appellants’ Br. at 69-70.23 First,

Good argues the court stated in its opinion it considered the fact that Good

had underpaid his employees by $65,000. Id. at 69 (citing Trial Court Opinion,

filed 8/10/21, at 7). Good argues that this was error, because while restitution

23 Although Good did not raise these arguments to the trial court, we will not

find waiver as the trial court’s Rule 1925(a) opinion was authored after the case was appealed.

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was set at that amount, Good claims he only pleaded guilty to five counts

referencing underpayments of only $2,000 each. Id. at 69 (citing 18 Pa.C.S.A.

§ 3903(b)).24 He asserts “[t]here is no evidentiary proof of the court’s

assertion that [he] stole $65,000 from his employees” and that he “agreed to

pay restitution as a show of good faith and to resolve the case.” Id. at 70.

We disagree with the contention that the court abused its discretion in

considering $65,000 to be the amount of underpayment. Before the

Commonwealth amended the Information, it substantiated the amount of

underpayment in the schedules listed under the five counts for theft by failure

to make required disposition of funds received. It presented prima facie

evidence of Good’s guilt at the preliminary hearing. The Amended Information,

to which Good pleaded guilty, did not include the schedules or total amount,

but stated that the amount Good failed to pay his employees exceeded $200

for each count; there was no maximum listed. During the plea colloquy, Good

acknowledged that the factual basis to which he was pleading guilty was what

the Commonwealth “said he did.” Good acknowledged the amount of

restitution and stated he understood the nature of the charges. At sentencing,

the court did not order a lump sum of restitution but ordered Good to pay a

specific amount to each of 34 victims – the lowest amount being three cents25 ____________________________________________

24 We note that while Good argues the grading of the theft indicates the amount involved on each count was less than $2,000, the grading statute he cites provides the amount involved was less than $200. See 18 Pa.C.S.A. § 3903.

25 See N.T., 4/26/21, at 29.

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– and Good argued at sentencing that he paid restitution so that “he could

make the victims whole.”

Therefore, although Good pleaded guilty only to five counts graded as a

misdemeanor, thereby decreasing the grading of his counts and number of

charges, and his overall sentencing exposure, there is nothing on the record

to suggest the amount of restitution was ever divorced from the underlying

facts to which Good pleaded guilty. The court did not abuse its discretion when

considering the amount Good underpaid his employees to be $65,000, the

amount listed as restitution prior to and during Good’s guilty plea.

Good next argues the court admitted that it had relied on the grand jury

testimony of a DLI employee, Dan Gioiosa, regarding sanctions DLI had

imposed on Allied Mechanical, Good’s previous employer. Good quotes a

portion of the trial court opinion stating that Good

was personally told by Mr. Gioiosa that changing the classification of workers in order to manipulate the cost of the project for bids was illegal and constituted theft. Despite [Good]’s involvement with Allied Mechanical’s misconduct, [Good] continued to withhold his employee[s’] wages after they had earned them. [Good] was given the chance to follow the law, but he chose not to. Therefore, it was clear to this Court, that without a sentence of incarceration, [Good] was likely to reoffend.

Appellants’ Br. at 71 (quoting Trial Ct. Op. at 7). Good argues the court’s

summary of the testimony is inaccurate, as Gioiosa never characterized the

wage underpayment as “theft.” He further argues the testimony was hearsay

and that the court deprived Good of his right to confrontation when

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considering it for purposes of sentencing. See Appellants’ Br. at 72;

Appellants’ Reply Br. at 33.

As with Good’s restitution issue, we find the court did not abuse its

discretion in considering facts that were made part of the record and thereby

incorporated into Good’s guilty plea. Good accepted the Commonwealth’s

allegations when he pleaded guilty, and those allegations included that Gioiosa

had warned Good that his conduct constituted wage underpayment. Although

Gioiosa did not use the word “theft” when describing Good’s conduct, we find

the difference to have no bearing, as the thrust of the court’s statement was

that Good had been made aware that by using predetermined ratios he was

underpaying his employees pursuant to his obligation under the PWA, that his

company had been sanctioned, and that he had engaged again in similar

conduct.

In addition, hearsay is routinely offered at sentencing hearings. See

Commonwealth v. Medley, 725 A.2d 1225, 1230 (Pa.Super. 1999). While a

defendant must have an opportunity to examine the hearsay and dispute its

accuracy, Commonwealth v. Berrigan, 535 A.2d 91, 106 (Pa.Super. 1987)

(en banc), Gioiosa’s grand jury testimony was discussed at the preliminary

hearing by Trooper Walters, whom Good cross-examined. The Commonwealth

also introduced into evidence the corroborating adjudication by DLI, which

discussed Gioiosa’s encounter with Good. We do not find the court abused its

discretion by considering Gioiosa’s grand jury testimony.

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Next, Good argues the court referenced the false statement charges that

had been dismissed as part of his plea deal. Appellants’ Br. at 69.

In its nine-page opinion, the court mentioned the charges once: “Good

is also accused of giving false testimony to the Grand Jury.” Trial Ct. Op. at 1.

We do not find this evinces an abuse of discretion. The court was giving

background history of the case, not discussing the reasons for its sentence.

4. Excessiveness

Good argues that considering the mitigating factors and, in his view, the

low gravity of the crime, imposing consecutive sentences on all five counts,

resulting in an aggregate sentence exceeding the aggravated range, was

unreasonable and excessive. “Under 42 Pa.C.S.A. § 9721, the court has

discretion to impose sentences consecutively or concurrently[.]”

Commonwealth v. Moury, 992 A.2d 162, 171 (Pa.Super. 2010).

Here, the court imposed an aggregate sentence just shy of four months

to two years’ incarceration. We do not find this to be so excessive as to

constitute an abuse of discretion, given the facts of the case. See 18 Pa.C.S.A.

§ 1104.

5. Bias and Prejudice

Finally, Good argues his sentence was not individualized and was the

result of bias and prejudice. Good argues the court rejected the first two plea

deals because they did not involve jail time. He points to the court’s

statements that the court believed a sentence of incarceration would be

necessary to “send a message” to other contractors, and that white collar

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crimes are one of its “pet peeves.” He also highlights the court’s statements

that it was treating Good’s case in line with the way the court has “dealt with

white-collar crimes cases,” and that it has “always been very tough on white

collar criminals.” He contends the court’s statements exhibited bias and that

the court abused its discretion in determining a sentence of incarceration was

warranted prior to the sentencing hearing and before having full consideration

of Good’s individual circumstances and character. Appellants’ Br. at 77.

A court imposing sentence must “[assess] the case in an impartial

manner, free of personal bias or interest in the outcome.” Commonwealth

v. Williams, 69 A.3d 735, 744 (Pa.Super. 2013) (cleaned up). The court must

also impose a sentence individualized to the offender, rather than one that is

pre-determined and based only on the crime. See Luketic, 162 A.3d at 1160.

The mere “appearance of prejudice is sufficient to warrant the grant of new

proceedings.” Williams, 69 A.3d at 744 (citation omitted). The court’s tone

must be one of “dispassionate reflection” rather than advocacy. Id.

For example, in Williams, we found evidence of bias in the court’s

“focus on repairing or correcting the perceived mistakes of prior judges with

whom the trial judge disagreed;” “its excessive focus on the [a]ppellant’s

victimization of the Catholic Church and attribution of motives to [the

a]ppellant that were unsupported by the record”; “the use or misuse of

pseudo-medical terminology to describe [a]ppellant’s mental health that was

unsupported by the record”; and “the improper consideration of [a]ppellant’s

gender and the court’s subjective comparison of [a]ppellant to other members

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of [a]ppellant’s gender that were sentenced in his courtroom.” Id. at 749.

Among other things, the court had referred to the appellant as a pathological

liar, a sociopath, and a “violent, thuggish female.” Id. at 749.

In Luketic, 162 A.3d at 1152, we found the court abused its discretion

and failed to impose an individualized sentence when it stated, prior to the

sentencing hearing, that it would be sentencing the defendant to a period of

incarceration, and then at the sentencing hearing, asked the defendant to

convince the court that incarceration would not be appropriate. The court had

also stated it was imposing a sentence of incarceration because it had done

so on a co-defendant, as the two were “opposite sides of the same coin” in

the heroin epidemic. Id. at 1164-65. The court had failed to order a PSI or

gather sufficient relevant information regarding the defendant’s history and

background. Id. at 1165. The Supreme Court similarly found the court had

failed to impose individualized sentences in Commonwealth v. Martin, 351

A.2d 650, 651 (Pa. 1976), and Commonwealth v. Knighton, 415 A.2d 9,

11-12 (Pa. 1980), in which the trial courts imposed sentences they had

determined in advance of the sentencing hearing and through consultation

with other judges. Id. at 1162.

Conversely, in Walls, the Supreme Court considered whether the

sentencing court’s statements indicated that it “had an agenda against sex

offenders that involved imposing the maximum sentences permitted by law

regardless of the individual circumstances of the case.” 926 A.2d at 965. The

court found that “while the sentencing court unfortunately cast doubt upon

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the individualized nature of [the defendant’s] sentence by making certain

general comments about those who sexually victimize young children, when

viewed as a whole, the sentencing court made a sentencing decision that was

individualized[.]” Id. at 966.

Here, unlike in Williams or Luketic, we do not find the court’s

statements exhibited bias. Although the court said that it is “tough” on white-

collar criminals, the court stated at the same conference that it had no grudge

against Good as an individual. The court’s tone was consistently one of

dispassionate reflection.

Nor do we find the court’s statements indicate that it had decided from

the outset that it would sentence Good to incarceration. Although the court

stated it rejected the first two plea deals because a term of incarceration would

be warranted to “send a message” to other offenders, the court also explained

that it had not predetermined that it would impose a sentence of incarceration.

Instead, it said it was looking at the total allegations and charges against Good

and Goodco and contemplating a proportional sentence given a “total

admission of guilt.” The court rejected the plea deals because the sentences

were facially disproportionate. As the court explained, it did not discuss what

length of incarceration would be appropriate for any given conviction.

The record also reflects that the court considered the mitigating

evidence. After considering the information presented at sentencing, the court

stated its decision to sentence Good in the standard range, despite its belief

that the aggravated range might also have been appropriate. Thus, as in

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Walls, the record reflects the court imposed an individualized sentence, and

not a predetermined sentence based on the crime alone.

Judgment of sentence affirmed.

Judgment Entered.

Joseph D. Seletyn, Esq. Prothonotary

Date: 2/28/2023

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