Com. v. Steinberg, A.

• Court: Superior Court of Pennsylvania
• Decided: August 26, 2014
• Docket: 1761 WDA 2012
• Status: Unpublished

Opinion

J-A23016-14

NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA, IN THE SUPERIOR COURT OF PENNSYLVANIA Appellee

v.

ARNOLD STEINBERG,

Appellant No. 1761 WDA 2012

Appeal from the Judgment of Sentence entered October 24, 2012, in the Court of Common Pleas of Allegheny County, Criminal Division, at No(s): CP-02-CR-0013930-2011

BEFORE: DONOHUE, ALLEN, and MUSMANNO, JJ.

MEMORANDUM BY ALLEN, J.: FILED AUGUST 26, 2014

pro se from the judgment of

sentence entered after a jury convicted him of two counts of the

.1 We affirm.

convictions as follows:

The [Commonwealth] charged Appellant with [the] unauthorized practice of law. There were two separate accusations of criminality: the first inv resolution of a personal injury matter for Marcie Caliguire;

Mrs. Batis in a financial securities matter. In both instances, the [Commonwealth] accused [Appellant] of practicing law after he was disbarred [by consent] on [January 29,] 2009. The [Commonwealth] presented evidence from Ms. Caliguire, her father, John, opposing ____________________________________________

1 42 Pa.C.S.A. § 2524. J-A23016-14

counsel in the securities matter, Mrs. Batis[,] and an The

exhibits.

Personal Injury Caliguire Matter

Marci Caliguire was in an automobile accident in North Carolina in September, 2007. She talked with her father about it and he recommended she call [Appellant]. She

the attorney-

sent a form letter to Ms. Caliguire. The topic was the

statement to her was as follows:

$5,000.00 and the check and Release are on the way to my office. We could not get more because of notations in the records that you had other vehicular accidents and that you had told the doctors that you had basically recovered. Based upon everything, this is far better than having to retain North Carolina counsel to file an action that would be a major distraction to you in the forms of depositions, hearings, independent medical exams, etc. Please

The date of this communication from [Appellant] was November 10, 2009. The date of his disbarment was 9 months earlier [on] January 29, 2009. At no time did [Appellant] inform Ms. Caliguire that he was no longer a

evidence.

***

Financial Securities Batis Matter

Through hard work, Carol and Nicho accumulated some assets through their 37 years of marriage. They chose to invest this money. They gave their money to a brokerage firm, Stifel Nicholaus. Sometime in 2008, Batis wanted to sell some of their stock

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in response to the market correction the United States was experiencing. Their contact person, Mr. Phillip Kontul,

result, their stock was not sold as quick as they would have liked. They lost money. Batis estimated it to be about $95,000.

This was not the first time Batis experienced such an event. Around 2001, Batis suffered more substantial losses around $250,000. Batis pursued the matter in an arbitration forum. In 2003, the arbitration panel ruled in Bati [Appellant].

With this history of success, Batis reached out to [Appellant] to help them with the more recent matter. In August, 2008, Batis entered into a contract with [Appellant]. [Appellant] agreed to act as their attorney to

inference can be drawn that Appellant was paid the $1,000 called for in the agreement to start his representation.] [Appellant] filed a Statement of Claim on behalf of Batis. This document details the particulars of the claim. A hearing date was set for late October, 2009.

About a month before the hearing, [Appellant] communicated an offer he received to settle the case. The offer was $30,000. His advice was that Batis

the entire 95- success, the offer was rejected by Batis.

A few days before the hearing, [Appellant] and Batis [met] in his office to prepare. The meeting also included the presence of expert witnesses. [Appellant] told Batis they were needed. Batis accepted the advice. The hearing

far different than the $95,000 Batis calculated and significantly less than the $30,000 that was negotiated by [Appellant].

At home that evening, Batis began to do some research. [They] learned [Appellant] was disbarred. Batis was never told by [Appellant] that he was disbarred. They never received a letter from him saying he was disbarred. His date of disbarment was January 29, 2009.

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Trial Court Opinion, 8/5/13, 3-6 (citations to notes of testimony, exhibits

and footnotes omitted).

In his defense, Appellant testified and, as to both matters, asserted

that the clients suffered no harm. In addition, Appellant claimed that what

the jury convicted Appellant of two counts of the unauthorized practice of

law. On October 24, 2012, the trial court sentenced Appellant to an

aggregate term of eighteen months of probation, as well as restitution and

court costs. This timely appeal followed. Both Appellant and the trial court

have complied with Pa.R.A.P. 1925.

Appellant raises the following issues:

1.

2. Whether the cumulative effect of the numerous errors and instances of prejudice committed by the Trial [Court], served to deprive [Appellant] of a fair trial?

3. Whether the acts of which [Appellant] was accused were de minimus to the point where the Trial Court should have dismissed the charges brought against [Appellant]?

4. Whether the Trial Court erred in refusing to include the Proposed Jury Instructions of [Appellant] as part of its Charge to the Jury?

comply with Pa.R.A.P. 2116(a), in that each of the above issues are not

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supported by a separate delineated argument section. This has rendered

Commonwealth contends that all of Appellan

Citing Pa.R.A.P. 302(a), the Commonwealth first contends that

raise the issues with the trial court, and notes that Appellant cannot rectify

his error by raising the issues for the first time in his Pa.R.A.P. 1925(b)

-7 (quoting Commonwealth v.

Kohan, 825 A.2d 702, 706 (Pa. Super. 2003)). Additionally, the

Commonwealth asserts that any issue raised by Appellant that did not

appear in his Rule 1925(b) statement is waived. Pa.R.A.P. 1925(b)(4)(vii).

Finally, the Commonwealth supports its waiver argument by averring that all

Brief at 7. Accordin

either because Appellant does cite to the record or relevant legal authority,

Commonwealth v. Berry, 877 A.2d 479, 485 (Pa. Super. 2005), or has

inadequately developed his claim for relief. See generally,

Commonwealth v. Spotz, 18 A.3d 244 (Pa. 2011). The trial court has also

found waiver with regard to several issues. See Trial Court Opinion, 8/5/13.

We will address waiver relative to each issue raised by Appellant.

Appellant first mounts a constitutional challenge to the UPL statute.

The pertinent statutory section reads as follows:

§ 2524. Penalty for unauthorized practice of law

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(a) General rule. Except as provided in subsection (b) [(relating to practice by associations)], any person, including but not limited to, a paralegal or legal assistant, who within this Commonwealth shall practice law, or who shall hold himself out to the public as being entitled to practice law, or use or advertise the title of lawyer, attorney at law, attorney and counselor at law, counselor, or the equivalent in any language, in such a manner as to convey the impression that he is a practitioner of the law of any jurisdiction, without being an attorney at law or a corporation complying with 15 Pa.C.S. Ch. 29 (relating to professional corporations), commits a misdemeanor of the third degree upon a first violation. A second or subsequent violation of this subsection constitutes a misdemeanor of the first degree.

42 Pa.C.S.A. § 2524(a).

In support of his constitutional challenge, Appellant asserts that

inguishes

-admitted attorneys versus people who had

Id. at 14 n.10. Thus, Appellant

Id. at 14-15.

As to his specific charges, Appellant additionally argues that in the

Director of Arbitration [and] he was acting without any intent to violate the

Id. at 13. As to the Caliguire matter, his actions in

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accidentally had the wrong letterhead, . . . would also appear to not violate

d).

his Pa.R.A.P. 1925(b) statement resulted in waiver of his claim. Our review

of the statement sup See generally,

Commonwealth v. Hansley, 24 A.3d 410 (Pa. Super. 2011). Nonetheless,

declared unconstitutional unless it clearly, palpably and plainly violates the

Commonwealth v. Cotto, 753 A.2d 217, 219 (Pa. 2000)

Id.

resolved in favor of finding that the legislative enactment passes

Commonwealth v. Waddell, 61 A.3d, 198, 202

(Pa. Super. 2012).

Supreme Court has summarized:

A statute is constitutionally void if it is so vague that persons of common intelligence must necessarily guess at its meaning and differ as to its application. A vague law impermissibly delegates basic policy matters to policemen, judges, and juries for resolution on an ad hoc and subjective basis, with the attendant dangers of arbitrary and discriminatory application. However, a statute will not be deemed unconstitutionally vague if the terms, when read in context, are sufficiently specific that they are not subject to arbitrary and discriminatory applications.

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Cotto, 753 A.2d at 220 (citations omitted).

reasoning as follows:

Our state Supreme Court has dealt with this broad issue -for-vagueness standard, a statute

that persons of common intelligence must necessarily

Commonwealth v. Davidson, 938 A.2d 198, 207 (Pa. 2007) (citations omitted). However, a statute will pass a vagueness constitutional challenge if the statute

that ordinary people can understand what conduct is prohibited and in a manner that does not encourage Id., (citations omitted). Due process requires that a criminal statute give fair warning of the conduct it criminalizes. Id.

Assembl

sought does not mean that the statute which it in fact Id., at 207-208 (citations omitted).

int about the [UPL] statute is that it does not define that very phrase unauthorized practice of

and many others to wonder what is acceptable conduct and what is criminal conduct.

Our state Sup a comprehensive statement of what activities comprise the practice of law, nor have we believed it wise or necessary to engage in the task of defining what the practice of law Office of Disciplinary Counsel v. Marcone, 855 A.2d 654, 660 (Pa. 2004), citing the leading case on the topic, Shortz v. Farrell, 193 A. 20 (Pa. 1937) (attempt to formulate a precise definition of the practice of law would be more likely to invite criticism than to ach have explained what specific activities constitute the

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practice of law on a case-by- Id. While our focus is on the underlying facts [in this case], the 76 year old Shortz decision touched upon 3 broad categories of activity that would constitute the practice of law[:]

(1) the instruction and advising clients in regards to the law so that they may pursue their affairs and be informed as to their rights and obligations;

(2) the preparation of documents for clients requiring familiarity with legal principles beyond the ken of ordinary laypersons; and

(3) the appearance on behalf of clients before public tribunals in order that the attorney may assist the deciding official in the proper interpretation and enforcement of law.

Shortz, 193 A. at 21.

parameters established by Shortz. As for the personal injury matter, [Appellant] advised Ms. Caliguire that the $5,000 settlement was the best that could be obtained. He reached that conclusion based upon his years of experience and knowing the likelihood of success if that monetary resolution was rejected. He also instructed Ms. Caliguire about the practical problems associated with an accident which happened in another state. Ms. Caliguire relied upon that advice. For the Batis matter, [Appellant] prepared a statement of claim. He used his experience to filter what pertinent facts needed to be included. He appeared in the arbitration matter and was the leader of the Batis team. His team members included expert witnesses which [Appellant] prepared for their presentation. At the end of the day, the Court does not see that a person of ordinary intelligence would continue to do tasks a lawyer normally does after being told you are no longer a lawyer.

The present facts just do not allow [Appellant] to overcome [the presumption of constitutionality].

Trial Court Opinion, 8/5/13, at 9-11.

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onclusion that

Appellant failed to meet his burden of establishing that the UPL statute is

largely based on matters outside the record and therefore irrelevant, are

inapposite. Thus,

3. In support of

this issue, Appellant argues specific instances under seven subheadings,

The subheadings raised by Appellant largely concern the conduct and

predisposition against Appellant, and demonstrates why the trial court

-trial motion for recusal. See N.T., 9/4

6/12, at 239. In each of these subheadings Appellant either lists out-of-

errors

See

-30. Appellant does not reference any pertinent

authority to support his claims. Because Appellant has not adequately

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developed any of these claims, we find them waived, and will not consider

them further. Spotz, supra.

Court has explained:

If a party questions the impartiality of a judge, the proper recourse is a motion for recusal, requesting that the judge make an independent self-analysis of the ability to be impartial. If content with that inner examination, the judge must then decide whether his or her continued involvement in the case creates an appearance of impropriety and/or would tend to undermine public confidence in the judiciary. This assessment is a personal and unreviewable decision that only the jurist can make. Once the decision is made, it is final.

This Court presumes judges of the Commonwealth are honorable, fair and competent, and when confronted with a recusal demand, have the ability to determine whether they can rule impartially and without prejudice. The party who asserts a trial judge must be disqualified bears the burden or producing evidence establishing bias, prejudice, or unfairness necessitating recusal, and the decision by a judge against whom a plea of prejudice is made will not be disturbed except for an abuse of discretion.

Commonwealth v. Druce, 848 A.2d 104, 108 (Pa. 2004) (citations

omitted).

The trial court explained the context of the recusal motion, and its

reasons for denying it, as follows:

When the Commonwealth ended their evidentiary presentation, the parties conferred with the Court. During this discussion, [Appellant] asked that the case be dismissed. Soon thereafter, [Appellant] moved to recuse this jurist from further participation. After giving

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[Appellant] the opportunity to argue, the motion was denied.

[Druce, supra] requires [Appellant] produce evidence

do. His oral argument at the time of his motion mimics what is contained in his [Amended Pa.R.A.P. 1925(b) Statement] that is the Court believed him to be guilty and that belief influenced its decision making. The Court does not run from its thought that [Appellant] was guilty of

expressed when [Appellant] asked the Court to grant his request for judgment of acquittal.

When faced with such a motion, a trial court must adhere to a certain standard[:]

A motion for judgment of acquittal challenges the sufficiency of the evidence to sustain a conviction on a particular charge, and is granted only in cases in which the Commonwealth has failed to carry its burden regarding that charge. The standard we apply in reviewing the sufficiency of the evidence is whether reviewing all the evidence admitted at trial in the light most favorable to the verdict winner, there is sufficient evidence to enable the factfinder to find every element of the crime beyond a reasonable doubt.

Commonwealth v. Hutchinson, 947 A.2d 800, 805-806 (Pa. Super. 2008) (citations and quotations omitted). The Court complied with this standard. It articulated the factual inferences it was allowed to draw. It made reference to the elements of the crime. It commented on how the facts and the law coalesced in such a way that it ecide what the true facts were. Commonwealth v. Neary, 512 A.2d 1226, 1233 (Pa.

not exposed to any comments made by the judge, but

the stre

Trial Court Opinion, 8/5/13, at 32-34.

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After reviewing the trial transcript, we conclude that the trial court did

of his claim, Appellant asserts:

[Appellant] contends that nothing could lend to a greater question of judicial impartiality [sic], when the trial judge makes a statement in front of the jury, that he believes [Appellant] committed the acts that constituted the violation of which he was accused. That not only sent a wrong message to the jury, but it also served as a warning that the judge would never rule favorably on any dispositive or other important motion brought by [Appellant] during the trial that could have resulted in the charges being dismissed.

support his assertion. Assuming that Appellant is referring to the trial

tal,

we note that the comments were made outside the presence of the jury.

See N.T., 9/4-9/6/12, at 233. The fact that Appellant disagrees with the

a basis for recusal. Thus

In his third issue, Appellant argues that the acts for which he was

de minimus to the point where the Trial Court should have

Appe de minimus argument was the basis for his motion for judgment

of acquittal. Once again, Appellant provides argument that is devoid of

citation to the relevant statute or pertinent case authority. Thus, his

undeveloped claim is waived. Spotz, supra.

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Appellant further argues that the trial court mislead him by stating

that the de minimus determination would be made by the jury. According to

Appellant, he tailored his defense strategy given this belief, and was

judgment of acquittal. See -31. Our review of the

court responded:

would I grant a Motion for Judgment of Acquital [sic]? No. Would I - - would I find this a de minimus infraction? No;

My responses are to procedural questions and standards, from the standards I have to

prejudice you, whatever appeal you want to make to the jury. I think I have been very liberal in the course of this trial, trying to give you as much latitude as possible given the dyna to do in this situation other than to allow you to proceed as requested.

N.T., 9/4-9/6/12, at 237-238.2 In a response to a request by Appellant that

he be permitted to refer to a de minimus defense, the trial court further

Id. at 243. Thus, the

____________________________________________

trial.

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court.

In his final claim, Appellant asserts that the trial court erred in refusing

to include his proposed jury instructions in its charge to the jury. According

to Appellant, the trial court further erred in failing to conduct a conference or

proposed by [Appellant], despite the fact that 9 of those had legal authority

that although Appellant asked the trial court to make certain clarifications,

he did not object following the t See N.T.,

9/4-9/6/12, at 374-379. Thus, the claim is waived. See generally

Pa.R.A.P. 302(b); Commonwealth v. Sanchez, 82 A.2d 943 (Pa. Super.

2013).

challenge to part of a jury instruction, we must review the jury charge as a

whole to determine if it is fair and complete. A trial court has wide

discretion in phrasing its jury instructions, and can choose its own words as

long as the law is clearly, adequately, and accurately presented to the jury

for its consideration. The trial court commits an abuse of discretion only

Commonwealth v.

Roser, 914 A.2d 447, 455 (Pa. Super. 2006) (citation omitted).

Our standard for reviewing such a challenge is well-settled:

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In reviewing a challenged jury instruction, we must review the charge as a whole and not simply isolated portions, to ascertain whether it fairly conveys the required legal principles at issue. We are reminded, as well, that a trial court possesses broad discretion in phrasing its instructions to the jury and is not limited to using particular language provided that the law is clearly, adequately and accurately presented to the jury.

Commonwealth v. Bracey, 831 A.2d 678, 684 (Pa. Super. 2003), appeal

denied

Commonwealth v. Smith, 956 A.2d 1029, 1034-35 (Pa. Super. 2008) (en

banc

instructions meets this standard.

without merit, we affirm the judgment of sentence.

Judgment of sentence affirmed.

Judge Donohue concurs in the result.

Judgment Entered.

Joseph D. Seletyn, Esq. Prothonotary

Date: 8/26/2014

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