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Commonwealth v. Veon

Superior Court of Pennsylvania

February 6, 2015

COMMONWEALTH OF PENNSYLVANIA, Appellee
v.
MICHAEL R. VEON, Appellant

Argued: September 17, 2013.

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Appeal from the Judgment of Sentence and Order of the Court of Common Pleas, Dauphin County, Criminal Division, No(s): CP-22-CR-0004274-2009. Before BRATTON, J.

Joel S. Sansone, Pittsburgh, for appellant.

Amy Zapp, Office of the Attorney General, Harrisburg, for Commonwealth, appellee.

BEFORE: PANELLA, J., MUNDY, J., PLATT, J.[*] OPINION BY PANELLA, J.

OPINION

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PANELLA, J.

This is the latest in a string of cases involving corrupt political officials. 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. As explained in detail below, we quash the appeal at 2168 MDA 2012 and affirm the convictions and the order of restitution at some counts, but vacate and remand for further proceedings on other counts.

At all relevant times, Appellant, Michael R. Veon, was the sitting representative for the 14th Legislative District for the Pennsylvania House of Representatives, 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 his legislative aide, Anna Marie 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 Veon guilty on the following charges:

o 1 count of violating 65 Pa.C.S.A. § 1103(a) (conflict of interest;
o 2 counts of violating 18 Pa.C.S.A. § 3921(a) (theft by unlawful taking);
o 2 counts of violating 18 Pa.C.S.A. § 3922(a)(1) (theft by deception);
o 2 counts of violating 18 Pa.C.S.A. § 3927(a) (theft by failure to make required disposition of funds);
o 2 counts of violating 18 Pa.C.S.A. § 4113(a) (misapplication of entrusted property); and
o 1 count of violating 18 Pa.C.S.A. § 903 (criminal conspiracy).

The trial court subsequently sentenced Veon to an aggregate sentence of not less than 12 nor more than 48 months' imprisonment, to be followed by 48 months of intermediate punishment, and ordered Veon to pay the amount of $119,000.00 in restitution to the Commonwealth of Pennsylvania.

Veon filed post-sentence motions, which the trial court granted in part and denied in part. The trial court granted Veon's request for a hearing on restitution. The trial court held the hearing and entered an order on November 8, 2012, fixing restitution at $135,615.00. This timely appeal followed.

On appeal, Veon 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

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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 [Veon].
a. Whether the trial court improperly permitted the amendment of the information to change " utilize" to " staff" related to the South Side Office;
b. 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[.]
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 ... [Veon]'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.
VI. Whether the evidence adduced at trial was insufficient as a matter of law to convict ... [Veon] of the charges for which he was found guilty.

Appellant's Brief at 6-7.

Before we address the issues raised on appeal, we begin with two preliminary matters. First, the trial court maintains that Veon has waived all of his issues on appeal by failing to file a timely statement of matters complained of on appeal pursuant to Rule 1925(b) of our Rules of Appellate Procedure. Waiver is no longer the remedy under such situations. Where the trial court does not address the issues raised in an untimely 1925(b) statement, we remand to allow the trial court an opportunity to do so. See Commonwealth v. Thompson, 2012 PA Super 15, 39 A.3d 335, 340 (Pa. Super. 2012). On the other hand, where, as here, the trial court has addressed the issues raised in an untimely Rule 1925(b) statement, we need not remand and may address the issues on their merits. See id.

Second, as a cautionary move, Veon appealed from both the judgment of sentence and from the order amending the amount of restitution. An award of restitution is a sentence. See Commonwealth v. Kinnan, 2013 PA Super 169, 71 A.3d 983, 986 (Pa. Super. 2013). Here, ...


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