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Commonwealth of Pennsylvania v. Gerald Garzone

January 19, 2012

COMMONWEALTH OF PENNSYLVANIA, APPELLANT
v.
GERALD GARZONE, APPELLEE COMMONWEALTH OF PENNSYLVANIA, APPELLANT
v.
LOUIS GARZONE, APPELLEE



Appeal from the Judgment of Superior Court entered on April 13, 2010 at No. 695 EDA 2006 affirming in part and vacating in part the Judgment of Sentence entered on January 30, 2009 in the Court of Common Pleas, Philadelphia County, Criminal Division, at No. CP-51-CR-0012746-2007 The opinion of the court was delivered by: Mr. Chief Justice Castille

CASTILLE, C.J., SAYLOR, EAKIN, BAER, TODD, McCAFFERY, ORIE MELVIN, JJ.

ARGUED: May 11, 2011

OPINION

The issue in these consolidated appeals involves the construction of 16 P.S. § 7708, applicable to Pennsylvania counties of the first class, which provides that "in cases where a defendant is convicted and sentenced to pay the costs of prosecution and trial, the expenses of the district attorney, in connection with such prosecution, shall be considered a part of the costs of the cases and be paid by the defendant."*fn1 The specific question is whether a trial court may order a convicted offender to pay costs to the Commonwealth representing salaries for hours worked by assistant district attorneys ("ADAs") and county detectives. The Superior Court vacated the trial court's imposition of such costs. For the reasons set forth below, we affirm.

Appellees are brothers who were licensed funeral home directors in Philadelphia. They operated several funeral homes and co-owned a crematorium with James McCafferty. In early 2004, appellees and McCafferty were approached by Michael Mastromarino, owner of Biomedical Tissue Services, a business that sold human tissue harvested from cadavers to tissue banks for resale and medical use. Appellees and McCafferty agreed to provide cadavers from appellees' business to Mastromarino for $1,000 each. The arrangement was undertaken without the knowledge or consent of the families of the deceased and continued through September 2005, at which point Mastromarino learned that the Food and Drug Administration ("FDA") was investigating him. Mastromarino advised appellees to destroy their records, which they did by incinerating them in a crematory, just days before FDA investigators arrived. By that time, at least 244 cadavers had been provided to Mastromarino by appellees, for which appellees received over $245,000.

A grand jury charged appellees with 244 counts of theft by unlawful taking (of body parts), abuse of corpses, and various other charges, including fraud associated with appellees' filing false claims with the Pennsylvania Department of Public Welfare seeking reimbursement for providing funeral services to the indigent. Appellees evidently rejected a plea offer in July 2008 and trial was scheduled for September 2, 2008. Appellees informed the Commonwealth that they intended to continue to trial, even knowing that all other co-defendants intended to plead guilty and cooperate with the Commonwealth. The Commonwealth prepared for trial, but on the scheduled trial date, appellees pleaded guilty to all charges. At a sentencing hearing in October 2008, the court imposed prison terms of eight to twenty years upon each appellee*fn2 as well as joint restitution of over $300,000 to be paid to the affected former clients of appellees' funeral homes.

At that same sentencing proceeding, the Commonwealth also asked if the court would "consider requiring the defendants to pay cost[s] of prosecution or a portion," arguing that its personnel had to devote extensive resources and hours to prepare for a trial that could have lasted three months and required dozens of witnesses and hundreds of exhibits. The Commonwealth argued that imposing prosecution costs was within a trial court's discretion. The trial court denied the request, but the Commonwealth filed a motion to reconsider, seeking nearly $18,000 in costs. The Commonwealth cited and quoted 16 P.S. § 1403, the "all counties" version of Section 7708. The motion argued that "[t]he inordinate amount of resources devoted to preparing for the complex trial of these two guilty defendants should not be borne by the city if they can afford to pay the costs." In terms of statutory authority, the Commonwealth asserted that "[t]here is no basis for which costs of prosecution should be denied . . . ." Commonwealth's Motion to Reconsider Expenses Incurred by District Attorney, 10/31/08 (citing Commonwealth v. Hernandez, 917 A.2d 332 (Pa. Super. 2007) (holding 16 P.S. § 1403 constitutional in context of imposition upon defendant of cost of Commonwealth's mental health expert)).

In December 2008, the court granted reconsideration and ordered the Commonwealth to prepare itemized costs. The Commonwealth filed a motion to amend its previous motion, stating that in calculating the total costs, it became clear that the previous estimate of nearly $18,000 had understated the actual expenditures. In the amended motion, the Commonwealth claimed over $370,000, which included, inter alia, the salaries of the ADAs and county detectives who worked on the case (roughly $85,000 per appellee), and costs associated with the grand jury (roughly $5,000 per appellee). Commonwealth's Motion to Amend Motion to Amend Its Motion to Reconsider Expenses Incurred by District Attorney, 12/18/08.

At a hearing in January 2009, the trial court stated that its understanding of imposable costs, based on case law, was that courts have discretion to impose costs that are "reasonably necessary for the prosecution and not within the ambit of usual services provided absent extraordinary circumstances." The court declined to "parse out" salary time of those district attorney personnel who worked on this as well as other matters, but did view as imposable the salary hours of district attorney personnel who worked exclusively on this case, which was complex and demanding, creating the sort of "extraordinary circumstance" that warranted imposition of amounts representing prosecutorial personnel salary hours. Appellees' attorney protested that imposing these costs after restitution to the victims' families had already been negotiated and agreed upon as part of appellees' plea bargain amounted to improper "double dipping." The trial court held that, in light of the complex and time-consuming nature of the matter, prosecution costs representing ADA and detective salary hours could be assessed against appellees (roughly $90,000 per appellee). N.T., 1/29/09, at 35-46, 51-52, 70-71. Appellees appealed.

In its Pa.R.A.P. 1925(a) opinion, the trial court cited Section 7708 to support its order, as well as Commonwealth v. Cutillo, 440 A.2d 607, 609 (Pa. Super. 1982), which held that prosecution costs may be assessed upon a showing by the Commonwealth that the costs sought were "necessary for prosecution when considered in light of the peculiar facts and circumstances of each case. . . . Those costs which fall within the ambit of usual services provided may not be assessed against a convicted defendant absent extraordinary circumstances." The court also cited Commonwealth v. duPont, 730 A.2d 970 (Pa. Super. 1999), appeal denied, 749 A.2d 466 (Pa. 2000), where the costs of hiring a special prosecutor and legal interns to work on that specific case were deemed assessable. Turning to this case, the court emphasized that the costs assessed against appellees were limited to the salaries "of [ADAs] who, due to [the] enormous complexity of this case, had spent all their time working on the case" and to "the police detective assigned to the district attorney's office who had devoted 100% of his time to the case at bar." Trial Ct. Op, 6/1/09, at 5-7.

In separate but largely identical published opinions in appellees' appeals, the Superior Court affirmed assessment of the costs associated with the grand jury, but vacated the trial court's imposition of the costs representing ADA and detective salary hours. Commonwealth v. (Louis) Garzone, 993 A.2d 1245 (Pa. Super. 2010); Commonwealth v. (Gerald) Garzone, 993 A.2d 306 (Pa. Super. 2010).*fn3 The panel, after noting some older history in this area, analogized to other statutes that allow costs in specifically expressed instances, such as for crime laboratory fees or rewards paid for apprehension of the defendant. The panel then explored the decisional law and drew a distinction between "expenditures" and "expenses incurred" by the prosecution, such as expert witness fees or drug buy money, which it deemed recoverable under Section 7708, and costs that "fell within the ambit of non-extraordinary usual services," which it deemed non-recoverable. The panel agreed with appellees that "whether [appellees] ever committed a crime, let alone [were] convicted of such, the [ADAs'] salaries were going to be paid out of the county treasury, and therefore, the salaries were not expenditures made in connection with [appellees'] prosecution." 993 A.2d at 316-20.

The panel disagreed with the Commonwealth's contention that ADAs' salaries were necessary expenses incurred in prosecution because of the complexity of the case and the effort expended by Philadelphia prosecution personnel in preparation for trial. The panel stated that "to accept the Commonwealth's position would, in effect, make the District Attorney's Office operate as a private law firm using billable hours. Clearly, this was not the intent of the Legislature. . . ." The panel also referenced the "American Rule," which provides that the parties to litigation generally pay their own legal costs, and assessment of attorneys' fees from another party is viewed as exceptional and limited to instances of contractual agreement, which was not present here, or explicit statutory authorization.*fn4 In the panel's view, the statutes authorizing prosecution costs may not be read so broadly as to allow recovery by the Commonwealth of regular prosecutorial personnel salaries. This was so because there was no "specific provision for a convicted defendant to pay the salaries of assistant district attorneys, whose services fall within the ambit of usual services." According to the panel, the General Assembly could have expressly conveyed such an intention, but did not; and the panel declined to read such a requirement into the legislation. The panel reached the same conclusion with regard to the salary of the detective who worked full-time on appellees' case. Deciding that the costs could be subtracted from the trial court's sentence without need for remand, the panel included language to that effect in its mandate. 993 A.2d at 320-23.

This Court granted the Commonwealth's petitions for allowance of appeal and consolidated the cases. The question presented, as phrased by the Commonwealth, is: "Did the Superior Court err in removing the cost of employing county detectives and assistant district attorneys from the trial court's discretion to impose prosecution expenses on a convicted offender?" Commonwealth v. Garzone, 6 A.3d 499 (Pa. 2010).

The Commonwealth argues that the Superior Court's ruling improperly invaded the sphere of the trial court's discretion to order a criminal defendant to pay costs and expenses associated with prosecution. The Commonwealth critiques the Superior Court's distinction between expenditures that are extraordinary or unbudgeted (deemed recoverable costs) and salaries paid regularly out of county treasuries (deemed nonrecoverable) as flawed, illogical, and contrary to the plain language of Section 7708. The Commonwealth asserts that the statute's plain language reflects a legislative purpose and intent to enable trial courts, within their discretion, to order recovery of county district attorneys' investigation and prosecution personnel expenses. According to the ...


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