J-A24003-13
NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
COMMONWEALTH OF PENNSYLVANIA IN THE SUPERIOR COURT OF PENNSYLVANIA Appellee
v.
ANNA MARIE PERRETTA-ROSEPINK
Appellant No. 2154 MDA 2012
Appeal from the Judgment of Sentence November 8, 2012 In the Court of Common Pleas of Dauphin County Criminal Division at No(s): CP-22-CR-0004272-2009
BEFORE: PANELLA, J., MUNDY, J., PLATT, J.*
MEMORANDUM BY PANELLA, J. FILED FEBRUARY 06, 2015
In this appeal, we consider, among other things, a challenge that
Section 1103(a) of the Public Official and Employee Ethics Act is
unconstitutionally vague, both as applied and facially, and overbroad. We
affirm the convictions, but vacate and remand for further proceedings on
restitution.
At all relevant times, Appellant, Anna Marie Perretta-Rosepink, was an
employee of her co-defendant, Michael Veon,1 the sitting representative for
the 14th Legislative District for the Pennsylvania House of Representatives,
____________________________________________
* Retired Senior Judge assigned to the Superior Court. 1 Veon’s appeal is docketed at 1698 MDA 2012. J-A24003-13
located in Beaver County, Pennsylvania. Veon was also the minority whip,
the second most powerful position in the House Democratic Committee.
In 1991, Veon formed the Beaver Initiative for Growth (“BIG”), a non-
profit corporation. BIG did not have a Board of Directors, but instead
featured two “co-chairs,” Veon and Pennsylvania State Senator Gerald J.
LaValle. BIG was funded exclusively through public monies, primarily
through grants from the Pennsylvania Department of Community and
Economic Development (“DCED”). Eventually, BIG leased office space in
Beaver Falls, Midland, and in Pittsburgh. BIG then sublet large portions of
those offices to Veon’s legislative offices, or, in the case of Pittsburgh,
allowed a research analyst for the House Democratic Committee to utilize
the property.
On May 27, 2009, the Commonwealth filed charges against Veon and
Peretta-Rosepink, alleging that they had executed a scheme that
misappropriated public funds awarded to BIG. Veon and Peretta-Rosepink
were tried before the same jury, and on March 5, 2012, the jury found
Perretta-Rosepink guilty on the following charges:
1 count of violating 65 Pa.C.S.A. § 1103(a) (conflict of interest;
1 count of violating 18 Pa.C.S.A.. § 3921(a) (theft by unlawful taking);
1 count of violating 18 Pa.C.S.A.. § 3922(a)(1) (theft by deception);
1 count of violating 18 Pa.C.S.A.. § 3927(a) (theft by failure to make required disposition of funds);
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1 count of violating 18 Pa.C.S.A.. § 4113(a) (misapplication of entrusted property); and
1 count of violating 18 Pa.C.S.A.. § 903 (criminal conspiracy).
The trial court subsequently sentenced Perretta-Rosepink to an aggregate
sentence of 48 months’ intermediate punishment, and ordered Veon to pay
the amount of $100,000.00 in restitution to the Commonwealth of
Pennsylvania.
Perretta-Rosepink filed post-sentence motions, which the trial court
granted in part and denied in part. The trial court granted Peretta-
Rosepink’s request for a hearing on restitution. The trial court held the
hearing and entered an order on November 8, 2012, fixing restitution at
$116,615.00. This timely appeal followed.
On appeal, Perretta-Rosepink raises the following issues:
I. Whether the Pennsylvania Conflict of Interest Law is unconstitutionally vague on its face, and whether the trial court improperly expanded the definition of, and as applied in this case, “private pecuniary interest” to include intangible political gain, thereby threatening the constitutional rights of all elected officials in Pennsylvania.
II. Whether the trial court improperly permitted the Commonwealth to amend the criminal information after the close of the Commonwealth’s case, thereby prejudicing [Peretta-Rosepink].
a. Whether the trial court improperly permitted the de facto amendment to the information by submitting an improper verdict slip to the jury, and by improperly answering the jury’s question, and by permitting the jury to decide which district office was the subject of the information[.]
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III. Whether the [trial] court erred in ordering restitution in this case in any amount, and whether the amount entered was otherwise improper.
a. Whether the amount of restitution was rationally related to the verdict; b. Whether restitution was improper because it was speculative, since the [trial] court could not know what legislative offices were represented by the verdict; c. Whether the restitution order was excessive because the non- profit benefitted from the use of the rented space; d. Whether the restitution order was improper because the Commonwealth cannot be a victim under the subject criminal statutes.
IV. Whether the verdict is improper because the Commonwealth cannot be a victim under the subject criminal statutes.
V. Whether the Commonwealth improperly destroyed witness interview notes in violation of … [Peretta-Rosepink]’s constitutional rights, and in violation of the Pennsylvania Rules of Criminal Procedure and the Pennsylvania Rules of Professional Conduct, thereby depriving the [Appellant] of a fair trial.
Appellant’s Brief at 13-14.
In her first issue on appeal, Perretta-Rosepink argues that the
Pennsylvania conflict of interest statute is unconstitutional. The statute at
issue is Section 1103 of the Public Official and Employee Ethics Act entitled,
Restricted Activities. Specifically, subsection (a), which case law refers to as
the conflict of interest statute. See 65 Pa.C.S.A. § 1103(a) Conflict of
interest. Perretta-Rosepink argues that this statute is void for
unconstitutional vagueness and overbreadth. We disagree.
We presume that acts passed by the General Assembly are
constitutional. See Commonwealth v. Lawrence, 99 A.3d 116, 118 (Pa.
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Super. 2014). “[A] statute will not be found unconstitutional unless it
clearly, palpably, and plainly violates the Constitution. If there is any doubt
as to whether a challenger has met this high burden, then we will resolve
that doubt in favor of the statute’s constitutionality.” Id. (citation omitted).
The constitutionality of a statute presents a question of law for which our
standard of review is de novo and our scope of review is plenary. See id.
We begin with Perretta-Rosepink’s claim that the statute is
unconstitutionally vague. In order to avoid due process concerns, a statute
must not be vague. See Commonwealth v. Habay, 934 A.2d 732, 737
(Pa. Super. 2007). “The due process standards of the Federal and
Pennsylvania Constitutions are identical.” Commonwealth v. Scott, 878
A.2d 874, 878 n.4 (Pa. Super. 2005) (citations omitted). The void-for-
vagueness doctrine “requires that a penal statute define the criminal offense
with sufficient definiteness that ordinary people can understand what
conduct is prohibited and in a manner that does not encourage arbitrary and
discriminatory enforcement.” Commonwealth v. Duda, 923 A.2d 1138,
1147 (Pa. 2007) (citations omitted). Thus, “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.” Habay, 934 A.2d at 737 (citations omitted). This
specificity requirement does not require a statute to “detail criminal conduct
with utter precision,” as these competing principles are “rooted in a rough
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idea of fairness.” Id. (citations omitted). Accordingly, “statutes may be
general enough to embrace a range of human conduct as long as they speak
fair warning about what behavior is unlawful.” Id. (citations omitted).
We also note that there are two types of vagueness challenges, both of
which Perretta-Rosepink asserts in this appeal: facial vagueness and
vagueness as applied.
First, a challenge of facial vagueness asserts that the statute in question is vague when measured against any conduct which the statute arguably embraces. Second, a claim that a statute is vague as applied contends the law is vague with regard to the particular conduct of the individual challenging the statute.
For a court to entertain challenges of facial vagueness, the claims must involve First Amendment issues. When a case does not implicate First Amendment matters, vagueness challenges are to be evaluated in light of the facts at hand—that is, the statute is to be reviewed as applied to the defendant’s particular conduct.
Id., at 738 (internal citations omitted).
The conflict of interest statute states, “[n]o public official or public
employee shall engage in conduct that constitutes a conflict of interest.” 65
Pa.C.S.A. § 1103(a). The statute defines “conflict of interest” as:
Use by a public official or public employee of the authority of his office or employment or any confidential information received through his holding public office or employment for the private pecuniary benefit of himself, a member of his immediate family or a business with which he or a member of his immediate family is associated. The term does not include an action having a de minimis economic impact or which affects to the same degree a class consisting of the general public or a subclass consisting of an industry, occupation or other group which includes the public official or public employee, a member of his immediate family or
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a business with which he or a member of his immediate family is associated.
65 Pa.C.S.A. § 1102. Definitions.
Perretta-Rosepink first claims the statute is vague on its face as it fails
to define the conduct prohibited. She maintains that the statute utilizes
general, conclusory terms. Thus, she contends that the conflict of interest
statute extends beyond illegal activity and encompasses constitutionally
protected activity—her right, as well as public officials’ and employees’ rights
as a whole, to free speech. In support, Perretta-Rosepink cites to a United
States Supreme Court case, Skilling v. United States, 561 U.S. 358
(2010), in which the appellant there asserted that the federal honest-
services statute, 18 U.S.C. § 1346, was unconstitutionally vague. Perretta-
Rosepink claims Skilling provides “direct and clear guidance when
evaluating Pennsylvania’s very similar conflict of interest statute.”
Appellant’s Brief at 27.
The Commonwealth disagrees. It argues that the conflict of interest
statute is not vague on its face. In support, it cites precedent from this
Court wherein a panel determined that the conflict of interest statute was
not unconstitutionally vague. See Commonwealth v. Habay, 934 A.2d
732 (Pa. Super. 2007). Further, the Commonwealth claims Skilling is
inapposite since the federal honest-services statute differs significantly from
the Pennsylvania conflict of interest statute.
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We can immediately dispense of Perratta-Rosepink’s reliance on
Skilling. This exact argument was rejected in Commonwealth v. Feese,
79 A.3d 1101, 1128 (Pa. Super. 2013).
We proceed to discuss Perretta-Rosepink’s argument that the statute
is facially vague. In Habay, appellant was a member of the Pennsylvania
House of Representatives who directed state-paid employees under his
authority to conduct campaign and/or fundraising-related work, during
state-paid time, for his personal benefit, and was convicted of violation of
the conflict of interest statute. On appeal, he raised, among other things, an
as applied challenge to the statute. The panel noted, however, that “even if”
he had raised a facial challenge “it is patently clear that the statute at hand
is not vague on its face.” 934 A.2d at 738. As the panel explained, the
statute is not facially vague because it specifically defines the conduct
prohibited:
There is nothing unclear about the concept of using the authority of an office to obtain private pecuniary benefit. The statute prohibits people who hold public offices from exercising the power of those offices in order to secure financially related personal gain. … Given the straightforward language of the statute at hand, we find it sets forth the crime of conflict of interest with sufficient definiteness that Appellant, and indeed any ordinary person, could understand and predict what conduct is prohibited. It speaks fair warning of the proscribed conduct.
Id. This language is admittedly dicta as it pertains to a facial challenge, but
we fully agree with the panel that it forecloses not only an as applied
challenge, but also a facial challenge.
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In essence, the statute focuses on the public resources granted to
public officials, and draws a distinct line between how an official may utilize
those resources. On one hand, it is permissible to use these resources for
government-related purposes. On the other hand, it is wholly impermissible
to utilize public resources to provide a pecuniary benefit to the office holder
or a member of their family.
Further, as previously noted, a facial vagueness challenge to a statute
must relate to First Amendment issues. In developing this argument,
however, Perretta-Rosepink fails to set forth a cognizable argument as to
why the statute, on its face, infringes upon her First Amendment right to
free speech.
The conflict of interest statute does not affect how a public official or
employee spends her own money; it affects only how the official spends
public funds. Public officials’ First Amendment rights are limited by the
government’s interest in ensuring efficient provision of government services.
See Pickering v. Board of Educ., 391 U.S. 563, 568 (1968). Perretta-
Rosepink cannot establish that a public official’s use of public funds for her
personal benefit constitutes protected First Amendment activity. That is
simply not protected speech.
In fact, we have rejected a challenge of facial vagueness where a
Pennsylvania State Senator argued that using state employees to conduct
political campaign activities on state time with state resources constitutes
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constitutionally protected free speech rights. See Commonwealth v. Orie,
88 A.3d 983, 1026 (Pa. Super. 2014). There, the panel found that the
conflict of interest statute “places no restrictions on a public official's federal
or state protected rights of expression and association, but only prohibits
officials from using state-funded resources for non-de minimis private
pecuniary gain.” Id.
Accordingly, Perretta-Rosepink has failed to demonstrate that the
statute affects a public official’s First Amendment rights, let alone that it is
unconstitutionally vague on its face. Next, we turn to Perretta-Rosepink’s
argument that the statute is unconstitutionally vague as applied to her
circumstances.
The trial court permitted the Commonwealth to argue that the
statutory term “private pecuniary gain” includes “intangible political gain”
such as “the utilization of misappropriated funds to garner favorable
publicity, to obtain free publicity, to enhance standing in the community, or
to otherwise achieve political gain.” Trial Court Opinion, 1/23/13, at 5
(citing Keller v. State Ethics Commission, 860 A.2d 650 (Pa. Cmwlth.
2004)). Perretta-Rosepink focuses on the trial court’s alleged extension of
the statutory term “private pecuniary gain” to include various “intangible
political benefits” as improper. She argues that he received no gain
whatsoever. But political gain costs money. The blatant and substantial
“intangible political gain,” as described in this case, surely constitutes private
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pecuniary gain—the misappropriated money inured to Perretta-Rosepink’s
benefit.2 She directly benefitted from Veon’s ability to continue to hold his
lucrative office through her continued employment as his legislative aide.
Veon’s scheme, and Perretta-Rosepink’s participation in it, is set forth in
detail below.
As a member of the House, Veon was entitled to $20,000.00 annually
to cover the expenses of operating his district office. See N.T., Trial,
2/22/12, at 271. In addition, he was entitled to spend $2,300.00 monthly
on office rent and vehicle costs, with office rent limited to no more than
$1,650.00 per month. See id., at 271-72. These allotments were taxpayer-
funded. See id., at 308. If a member of the House did not spend the
allotted money for rent costs, the money could not be used for any other
purposes. See id., at 271-72. On the other hand, if the House member
spent more than $1,650.00 per month on rent, the remainder would have to
be paid from the $20,000.00 annual allotment. See id., at 291.
While it was possible for a House member to exceed their allotment by
requesting a discretionary disbursement from the Democratic Minority
Leader, such a request had its drawbacks. Within the Democratic Caucus,
House members took issue with rent disparities between members. See ____________________________________________
2 Certainly, a de minimis private pecuniary gain, for example, when an elected official uses an expense account to attend a county fair would not violate the statute. We stress that it must be a non-de minimis private pecuniary gain. See Orie, 88 A.3d at 1026.
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N.T., Trial, 2/24/12, at 60-61. The Democratic Minority Leader received “a
lot of complaints … on a lot of occasions” regarding rent disparities. Id.
Furthermore, any money disbursed pursuant to such a request was a matter
of public record. See id., at 61. “[S]ome members just didn’t want to have
the political problem of a reporter finding out they were spending way above
their allotted amount of money.” Id.
Veon’s rent payments for his offices never exceeded $1,500.00 per
month. See N.T., 2/22/12, at 296. However, he never leased his legislative
offices directly from a landlord. Veon’s Beaver Falls office was sublet from
BIG. See N.T., Trial, 2/16/12, at 104. BIG paid $2,900.00 per month in
rent to the landlord, and received $1,500.00 per month from Veon’s House
expense account. See id. BIG occupied only approximately 20% of the
Midland office. See id., at 101-102; Commonwealth’s Exhibit 5 (floor plan).
As noted previously, Veon was co-chair of BIG. See N.T. 2/16/12, at
82. BIG was originally created as a vehicle to attract and implement a
variety of economic and community development throughout Beaver County.
See id., at 75. Veon served as co-chair alongside State Senator Gerald
LaValle; however, testimony established that LaValle’s position was akin to a
figurehead, and he was not directly involved in the organization’s operations.
See id., at 83; N.T. 2/21/12, at 286-88. On the other hand, Veon was
intimately involved with the day-to-day operations of the nonprofit and was
“fiscal director” of BIG. See N.T. 2/16/12, at 85.
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Veon’s use of BIG as a means to his own personal ends was evident
from the testimony of two former BIG executive directors: John Gallo and
Thomas Woodske. John Gallo served as BIG executive director from 1999 to
2003. See N.T., 2/16/12, at 81, 218.
Shortly after his appointment to executive director, Gallo discovered
that Peretta-Rosepink was appointed as BIG’s fiscal director. See N.T.
2/16/12, at 83. Peretta-Rosepink primarily worked in the legislative office,
but would occasionally handle payroll matters, as well as the payment of
utilities. See id., at 86. It was Peretta-Rosepink who secured rental office
space in an old bank in Beaver Falls to use for both a legislative office and
for BIG. See id., at 95. Peretta-Rosepink gave the lease to Gallo to sign on
behalf of BIG; Gallo was not involved with negotiating the lease with the
landlord, nor had he ever toured the property. See id., at 95-97.
The circumstances surrounding the Midland office were even less
transparent. Due to a family emergency, Gallo was out of work for most of
February 2003, and returned to work full-time in late February or early
March. See id., at 129-30. While Gallo was away, Peretta-Rosepink
obtained the BIG checkbook from a BIG employee. See id., at 132. Upon
returning, Gallo noticed a check written by Peretta-Rosepink to Rudy
Presutti, whom Gallo did not know. See id., at 162-63. Gallo questioned
Peretta-Rosepink about the check, and she responded that the check was for
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rent payment for the new BIG office in Midland. See id., at 163. This was
the first time Gallo heard about a BIG office in Midland. See id.
Thomas Woodske succeeded John Gallo in 2003. See N.T.,
2/22/2012, at 23. He testified that Veon’s style “was not consultative at all.
He dominated the organization and ran it as he saw fit.” Id., at 12. Veon
and Peretta-Rosepink consulted Woodske on two initial hires, but afterwards,
Woodske was not consulted on four subsequent hires. See N.T. 2/21/2012,
at 197-98. Woodske was never consulted regarding the lease for the Beaver
Falls district office. See id., at 207-08. Instead, either Veon or Peretta-
Rosepink would handle the negotiation of the leases. See id., at 208.
Veon was responsible for obtaining the public funding for BIG. See
N.T. 2/16/12, at 75. In order to obtain the funds, Veon would have to apply
for grants from the DCED. See id., at 75. Upon receipt of the grant monies,
Gallo and Woodske had no idea that Veon had obtained rental properties in
Pittsburgh’s South Side or in Midland. See id., at 95-97; N.T. 2/22/12, at
11-12. Though these new offices were obtained for BIG, the majority of the
space was actually used for Veon’s legislative offices. See N.T. 2/16/12, at
96-116. There were no signs indicating that BIG occupied those offices and
those who wished to visit BIG employees needed to walk through the
legislative office. See id.
The funds from BIG made up the difference in rent in each of the
offices that exceeded the allotment Veon was allowed from the
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Commonwealth. See N.T. 2/24/12, at 105-06; N.T. 2/27/12, at 157-64. As
such, the public monies provided to BIG through the DCED as a result of
grant applications by Veon, were then used to pay for Veon’s additional
legislative offices. The money that should have been spent for BIG was
otherwise spent on securing Veon additional legislative offices.
The words in the statute surely allowed Perretta-Rosepink to know that
her actions in assisting Veon’s scheme were criminal wrongdoings. Veon,
with the assistance of Perretta-Rosepink, deliberately used funds obtained
for the purposes of BIG to rent spaces for his legislative offices. As argued
by the Commonwealth, Veon was able to maintain the façade of a thrifty
public servant, who took less than his monthly rental allotment, while
enjoying facilities superior to those he could have obtained by merely
spending his allotment, all while not expending any personal funds. Veon
treated BIG as a personal bank account from which he could pursue his own
ends. All of this was for his benefit. As noted previously, this benefit flowed
to Perretta-Rosepink in the form of continued employment as Veon’s
legislative aide. We therefore find that the conflict of interest statute is not
vague as applied to the facts of this case.
Perretta-Rosepink also contends that the conflict of interest statute is
unconstitutionally overbroad. A statute is unconstitutionally overbroad, “if it
punishes lawful constitutionally protected activity as well as illegal activity.”
Commonwealth v. Davidson, 938 A.2d 198, 208 (Pa. 2007). In Habay,
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we rejected the same overbroad argument that Perretta-Rosepink advances
in this appeal. See 934 A.2d at 739.
Perretta-Rosepink next contends that the trial court erred in permitting
a de facto modification of the information pursuant to the phrasing on the
verdict slip given to the jury. She contends this amendment changed the
factual scenario supporting the underlying charges, thus prejudicing her by
negatively affecting her ability to mount an effective defense. We disagree.
The information “is a formal written statement charging the
commission of an offense signed and presented to the court by the attorney
for the Commonwealth after a defendant is held for court….” Pa.R.Crim.P.
103. The information apprises the defendant of the filed charges so he can
prepare a defense. See Commonwealth v. Sinclair, 897 A.2d 1218, 1223
(Pa. Super. 2006).
Pennsylvania Rule of Criminal Procedure 564 permits the amendment
of the information “when there is a defect in form, the description of the
offense(s), the description of any person or any property, or the date
charged, provided the information as amended does not charge an additional
or different offense.” Pa.R.Crim.P. 564. “[T]he purpose of Rule 564 is to
ensure that a defendant is fully apprised of the charges, and to avoid
prejudice by prohibiting the last minute addition of alleged criminal acts of
which the defendant is uninformed.” Sinclair, 897 A.2d at 1221 (citation
omitted). A court must look to see
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[w]hether the crimes specified in the original indictment or information involve the same basic elements and evolved out of the same factual situation as the crimes specified in the amended indictment or information. If so, then the defendant is deemed to have been placed on notice regarding his alleged criminal conduct. If, however, the amended provision alleges a different set of events, or the elements or defenses to the amended crime are materially different from the elements or defenses to the crime originally charged, such that the defendant would be prejudiced by the change, then the amendment is not permitted.
Id. (citation omitted).
Relief is only proper where the amendment prejudices the defendant.
See id., at 1223. A court must consider a number of factors in determining
whether an amendment results in prejudice:
(1) whether the amendment changes the factual scenario supporting the charges; (2) whether the amendment adds new facts previously unknown to the defendant; (3) whether the entire factual scenario was developed during a preliminary hearing; (4) whether the description of the charges changed with the amendment; (5) whether a change in defense strategy was necessitated by the amendment; and (6) whether the timing of the Commonwealth’s request for amendment allowed for ample notice and preparation.
In this instance, Perretta-Rosepink initially objected to the verdict slip
given to the jury, noting that the slip was ambiguous as to which legislative
district office was the subject of the prosecution. The trial court denied the
objection and sent the jury to deliberate with the verdict slip unmodified.
After retiring to the deliberation room, the jury requested a clarification of
the jury slip: “In regards to all counts stating (rent/legislative district
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office), does that refer to Midland, Beaver Falls, or both?” Perretta-Rosepink
renewed her objection to the variance between the information and the
verdict slip. The trial court overruled the objection and instructed the jury
that his answer to their question was “either, both or neither, as you may
find from the evidence presented.”
Perretta-Rosepink argues that this de facto amendment changed the
factual scenario in violation of all six factors for examining prejudice
mentioned above. See Sinclair, 897 A.2d at 1223. We agree with the trial
court that Perretta-Rosepink’s focus on the distinction between a single or
multiple offices is a red herring:
The unlawfully diverted funds (i.e. the “BIG” grant monies) from which those offense(s) arose were used to make monthly rental payments based upon which Mr. Veon received legislative district office space in both Beaver Falls and Midland. Thus, any distinction between the two was, we believe, immaterial so long as the jury found that Mr. Veon directed, authorized and/or approved the use of those misappropriated funds for his own political purposes.
Trial Court Opinion, 1/23/13, at 4.
The essence of the various charges at issue was that Veon had used
BIG funds for his personal benefit, and that Peretta-Rosepink had assisted
him this scheme. There was no factual dispute over whether BIG funds had
been expended in the relevant transactions. The only dispute was whether
the BIG funds had been expended for appropriate purposes, or whether they
had been used for Veon’s own personal gain. Again, Veon’s benefit then
flowed to the benefit of Perretta-Rosepink in the form of continued
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employment as a legislative aide. The distinction between the offices was
not relevant—at all—to the nature of the charges or to any possible defense.
We therefore find that the variance between the amended criminal
information and the verdict slip, as clarified by the trial court, did not
prejudice Perretta-Rosepink.
Perretta-Rosepink next argues that the trial court erred in ordering
restitution as the Commonwealth cannot be a victim for purposes of the
restitution statute. In support, she relies on the plain text of the statute, as
well as Commonwealth v. Brown, 981 A.2d 893 (Pa. 2009), which
provided further clarification of the term “victim” for purposes of the
restitution statute.
“[R]estitution is the requirement that the criminal offender repay, as a
condition of his sentence, the victim or society, in money or services.” Id.,
at 895 (footnote omitted). It acts to rehabilitate the offender “by impressing
upon him or her that his criminal conduct caused the victim’s loss or
personal injury and that it is his responsibility to repair the loss or injury as
far as possible.” Id. (citation omitted). “[I]t is highly favored in the law and
encouraged so that the criminal will understand the egregiousness of his or
her conduct, be deterred from repeating the conduct, and be encouraged to
live in a responsible way.” Id. (citation omitted).
Section 1106 of the Crimes Code mandates that restitution be paid
“[u]pon conviction for any crime wherein property has been stolen,
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converted or otherwise unlawfully obtained….” 18 Pa.C.SA. § 1106(a). The
statute further sets forth the individuals and entities entitled to restitution:
(A) the victim; … (C) “[a]ny other government agency which has provided
reimbursement to the victim as a result of the defendant’s criminal
conduct….” 18 Pa.C.S.A. § 1106(c)(1)(ii)(A, C).
Prior to 1995, the statutory language of Section 1106 did not include
Commonwealth entities under the definition of “victim.” See
Commonwealth v. Runion, 662 A.2d 617, 621 (Pa. 1995) (“[U]nless or
until the legislature enacts language to the contrary, we must find that the
Department of Public Welfare, as a Commonwealth entity, is expressly
excluded from the definition of a ‘person,’ and as such may not be
considered a victim under 18 Pa.C.S. § 1106.”). Subsequently, the
legislature amended Section 1106 in 1995 and again in 1998, broadening
the class of entities eligible to receive restitution to include the Crime
Victim’s Compensation Board, other government agencies, and insurance
companies. See 18 Pa.C.S.A. § 1106(c)(1)(ii)(A-D). While the legislature
broadened the definition of those eligible for restitution to include
government agencies, the language utilized in the amendments did not
include all government agencies. This limitation is evident in our Supreme
Court’s analysis of Section 1106 in Brown.
In Brown, the trial court ordered the defendant to pay restitution to
Medicare, which had paid a part of the amount the crime victim owed to a
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hospital that had treated the victim’s injuries. The issue before the Supreme
Court in Brown was whether Medicare was entitled to restitution from
defendant. Looking at the plain language of the statute, the Court
concluded that while it appeared that the legislature sought to include
government agencies within Section 1106, it was not clear exactly which
agencies qualified. Thus, the Court turned to established principles of
statutory construction, focusing heavily on the legislative history of Section
1106, to determine that the 1995 and 1998 amendments “implicitly
broadened the class of entities eligible for restitution to include government
agencies….” 981 A.2d at 899-900. Next, the Court sought to determine
exactly which agencies were encompassed by these amendments.
Brown argued that restitution was only available to those government
agencies that paid victims directly. Thus, since Medicare paid the victim’s
medical providers and not the victim directly, Brown contended that it was
not entitled to restitution. The Court disagreed, stating, “to find restitution
available only to those entities which directly paid the victim would place
form over substance and ignore the realities of medical reimbursement.”
Id., at 901.
The Court acknowledged that the term “reimbursement” was not
defined in the statute, “but as evinced by the broadened Section 1106, the
General Assembly not only expressed an increased focus on the importance
of mandatory restitution, it believed that criminal offenders should both
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provide restitution to the victim directly, and to entities incurring expenses
on the victim’s behalf.” Id., at 900. Further, the Court considered the dual
purposes of restitution: rehabilitation and deterrence.
[T]he main purpose behind the statute is rehabilitation of the offender by impressing upon him that this criminal conduct caused the victim’s loss or personal injury and that it is his responsibility to repair the loss or injury as far as possible, and that compensation to the victim is only secondary. Furthermore, the goals of restitution include the hope that the criminal will be deterred from repeating the conduct and encouraged to live in a responsible way.
Id., at 901 (citations omitted). Finally, the Court concluded that allowing
those entities that directly and indirectly compensate the victim of a crime to
be eligible for restitution would be consistent with the goals of rehabilitation
and deterrence, as well as consistent with the goal to be obtained by the
amended statute.
We conclude that the Commonwealth can be a victim under this
statute. As noted in Brown, the General Assembly intended to have the
restitution statute serve as deterrence for criminals. It would therefore be
contrary to the statute’s purpose and the General Assembly’s intent—not to
mention common sense—to have a defendant directly steal from the
Commonwealth, specifically the DCED, and not be liable for restitution.
Limiting restitution sentences to instances where the Commonwealth only
reimburses a third party victim would otherwise encourage criminals to steal
from the Commonwealth. As the Court expressed in Brown, to hold
otherwise would place form over substance and ignore the realities and
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purpose of the statute. Therefore, we must conclude that the
Commonwealth is a victim to which an order of restitution can be paid when
the Commonwealth is the direct victim of a crime.
We now turn to whether the amount of restitution ordered by the trial
court was proper. Perretta-Rosepink contends that the amount of restitution
ordered by the trial court was both speculative and excessive. Perretta-
Rosepink’s claim that the order of restitution is unsupported by the record
challenges the legality of the sentence. See Commonwealth v. Atanasio,
997 A.2d 1181, 1183 (Pa. Super. 2010). “[T]he determination as to whether
the trial court imposed an illegal sentence is a question of law; our standard
of review in cases dealing with questions of law is plenary.” Id. (citation
omitted).
A court must be guided by the following when computing restitution:
Although restitution does not seek, by its essential nature, the compensation of the victim, the dollar value of the injury suffered by the victim as a result of the crime assists the court in calculating the appropriate amount of restitution. A restitution award must not exceed the victim’s losses. A sentencing court must consider the victim’s injuries, the victim’s request as presented by the district attorney and such other matters as the court deems appropriate. The court must also ensure that the record contains the factual basis for the appropriate amount of restitution. In that way, the record will support the sentence.
Commonwealth v. Plegler, 934 A.2d 715, 720 (Pa. Super. 2007) (citations
Turning to the merits, we find that the trial court’s order of restitution
in the amount of $116,615.00 is supported by the record. The amount of
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the restitution was based on the rent payments from each of Veon’s offices
in Midland and Beaver Falls, minus the amount of money the comptroller’s
office deposited into BIG.
Despite the record’s support for the amount of the restitution,
however, the causal connection between the jury’s guilty verdict and the
amount of restitution is missing. While the jury found Perretta-Rosepink
guilty on counts regarding the rent of the legislative offices, the guilty
verdict indicated that the jury found Peretta-Rosepink guilty of stealing with
respect to either legislative office, both legislative offices, or neither office.
Therefore, the record does not specify which legislative office Peretta-
Rosepink’s thefts were related to, nor can it be assumed or speculated by
the trial court that the jury convicted Peretta-Rosepink of theft related to
both offices (Midland or Beaver Falls). As such, the trial court could not
properly determine which office the jury had in mind when it issued its guilty
verdict. Therefore, the trial court’s method of calculating restitution had no
basis for determining the causal connection of the damages that stemmed
from the guilty verdicts.
Our resolution of this issue does not contradict our earlier discussion of
the verdict slip. While the location of the offices was irrelevant to whether
Perretta-Rosepink committed the crimes charged, the specific method of
calculating restitution chosen by the trial court relies directly upon where the
stolen funds were spent. Since the verdict slip, as clarified by the trial court,
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equally supports jury findings that Veon, with Perretta-Rosepink’s
assistance, spent the stolen funds on only the Beaver Falls office, only the
Midland office, or both, picking any one of these three options constitutes
mere speculation. Accordingly, we conclude that the record before us does
not support a finding of a direct causal relationship between the amounts
paid for rent at each office and the jury’s verdict.
Therefore, the trial court erred in its order of sentence of restitution in
the amount of $116,615.00. The amount of restitution must be vacated as
there is no causal connection between the guilty verdicts and the losses
sustained by the victim. Upon remand, the trial court is to determine if
there is an appropriate method to calculate restitution in light of our
decision.
Perretta-Rosepink also argues that the Commonwealth cannot be a
victim under 18 Pa.C.S.A. § 3921, Theft by unlawful taking or disposition, 18
Pa.C.S.A. § 3922, Theft by deception, and 18 Pa.C.S.A. § 3927, Theft by
failure to make required disposition of funds received.
Recently, this Court decided the exact argument posed by Perretta-
Rosepink concerning whether the Commonwealth could be victim under 18
Pa.C.S.A. § 3921 and § 3922 in Commonwealth v. Stetler, 95 A.3d 864
(Pa. Super. 2014), wherein the panel adopted the trial court’s opinion in the
matter as its own. See id., at 882. As such, we affirm Perretta-Rosepink’s
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guilty verdict on the charges of theft by deception and theft by unlawful
taking.
We next address Perretta-Rosepink’s challenge to the guilty verdict on
the charges of theft by failure to make required disposition funds received.
That crime is defined 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).
Perretta-Rosepink argues that under this provision of the Crimes Code
the Commonwealth cannot be a victim since the statute does not specify if
the victim must be a person or government entity. We reject this argument.
Section 3927(a) requires a person who accepts money or property of
another pursuant to an agreement to meet the obligations of the agreement.
See Commonwealth v. Wood, 637 A.2d 1335, 1344 (Pa. Super. 1994).
An agent who has received funds subject to an obligation to make a required
payment may commingle funds if he so chooses without penalty as long as
the obligation for which the money or property is entrusted is met in a
timely fashion. See Commonwealth v. Fritz, 470 A.2d 1364, 1366 (Pa.
Super. 1990). “The language of the statute, that a person is guilty of theft
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by failure to make required disposition of funds if he ‘deals with property as
his own,’ does not require that the defendant actually use the property of
another.” Wood, 637 A.2d at 1344 (emphasis added). The word “deals”
means that the defendant took the property designed for a specific use and
used it as if it were his or her own property. See id.
As such, the case law indicates that the emphasis of the statute is
centered on the actions of the defendant—not the status of the victim. It is
clear that the language of Section 3927(a) requires convictions of any actor
that uses property of another inappropriately and fails to perform according
to the legal obligation. That is exactly what Veon did here, with Perretta-
Rosepink’s assistance. Thus, her argument fails.
Next, Perretta-Rosepink alleges the prosecution improperly destroyed
witness interview notes thus depriving her of a fair trial. Further, she claims
that such destruction violated a litany of constitutional rights, rules of
criminal procedure, and rules of professional conduct. We begin by noting
that Perretta-Rosepink has failed to properly present this issue for review by
improperly incorporating her argument by reference. Specifically, Perretta-
Rosepink states, “[t]he specific issue of destruction of notes by the
prosecutors in the Bonusgate prosecutions has been raised by the defense in
the matter of Commonwealth v. Feese at Superior Court No. 338 MDA
2012.” Appellant’s Brief, at 73. Perretta-Rosepink includes Feese’s brief in
the Reproduced Record.
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Perretta-Rosepink’s argument fails for several reasons. As it turns out,
this issue did not provide relief for Feese. See Commonwealth v. Feese,
79 A.3d 1101, 1105-1115 (Pa. Super. 2013). Furthermore, this issue is
waived as Rule 2119(a) of the Rules of Appellate Procedure requires a
properly developed argument for each question presented. This requires,
among other things, a discussion of and citation to authorities in the
appellate brief and “the principle for which they are cited.” See Pa.R.A.P.
2119(a), (b). Failure to conform to the Rules of Appellate Procedure results
in waiver of the underlying issue. See Commonwealth v. Buterbaugh, 91
A.3d 1247, 1262 (Pa. Super. 2014) (en banc). Incorporation by reference
does not constitute a properly developed claim.
Our Supreme Court has categorically rejected incorporation by
reference as a means of presenting an issue. The Court has called the
practice “unacceptable” and explained, “our appellate rules do not allow
incorporation by reference of arguments contained in briefs filed with other
tribunals, or briefs attached as appendices, as a substitute for the proper
presentation of arguments in the body of the appellate brief.”
Commonwealth v. Briggs, 12 A.3d 291, 342-343 (Pa. 2011) (citations
omitted). The allowance of incorporation by reference “would enable
wholesale circumvention of our appellate rules which set forth the
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fundamental requirements every appellate brief must meet.” Id., at 343
(citations omitted). Accordingly, we find this issue waived.3
Judgment of sentence affirmed, restitution award vacated. Case
remanded for further restitution proceedings consistent with this decision.
Jurisdiction relinquished.
Judgment Entered.
Joseph D. Seletyn, Esq. Prothonotary
Date: 2/6/2015
3 Perretta-Rosepink admittedly presents no factual support for her claim that the prosecutor admitted to the destruction of interview notes. See Appellant’s Brief at 72 n.22 (“The original admission by Mr. Fina does not appear in the record.”). The trial court determined that “[a]fter thoroughly questioning the prosecutors in this case, we found there to be no evidence which demonstrated that the prosecutors, or their agents, destroyed notes and/or documentation that had not already been memorialized in written form and disclosed to the defense.” Trial Court Opinion, 1/23/13, at 6.
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