from the Judgment of Sentence December 11, 2015 In the Court
of Common Pleas of Philadelphia County Criminal Division at
BEFORE: OLSON, SOLANO and MUSMANNO, JJ.
former Court of Common Pleas of Philadelphia County Judge
Willis Berry, appeals from the judgment of sentence entered
on December 11, 2015, as made final by the order entered on
February 4, 2016. In this case, we hold that the statute
criminalizing conflicts of interest does not violate the
doctrine of separation of powers, is not void for vagueness,
and is not overbroad. As we conclude that Appellant's
remaining challenges to his convictions are without merit, we
affirm his convictions. A decision rendered by our Supreme
Court during the pendency of this appeal, however, renders
Appellant's sentence illegal. Accordingly, we vacate
Appellant's judgment of sentence and remand for the sole
purpose of resentencing.
Court of Judicial Discipline previously summarized the
factual background of this case as follows:
From January 1996 to [June 2009, Appellant] served as a
Common Pleas Court Judge in Philadelphia County,
Pennsylvania. . . . Prior to becoming a judge in January
1996, [Appellant] had purchased several properties for
investment purposes. . . . After becoming a judge in 1996,
[Appellant] continued to own these properties and purchased
an additional one, owning at one point a total of 16
different vacant or occupied properties. Several of the
occupied buildings [were] multi-unit rental properties
operated by [Appellant].
Many of the properties purchased by [Appellant] were in poor
condition and non-compliant with various safety, building[, ]
and licensing codes when initially purchased, and issues
concerning property condition and/or code compliance 
continued to exist while under [Appellant's] ownership.
From January 1996 through and including August 2007,
[Appellant] was issued in excess of 70 citations by the City
of Philadelphia Department of Licenses & Inspections (
"L&I") for various violations of safety,
building[, ] and licensing codes. The various citations
issued by L&I included failure to obtain or maintain the
proper licenses or permits, and violations involving public
nuisance, building, health[, ] and safety requirements. As a
result of the issuance of these citations, [Appellant] was
required to take corrective measures to achieve compliance
with the applicable code(s) or be subject to further
From January 1997 through April 2007, [Appellant] used his
judicial office and judicial resources, including his
secretary, Carolyn Fleming ( "Fleming"), to
assist him in the day-to-day operations concerning his
properties. During this time period, Fleming engaged in . . .
the following activities concerning [Appellant's] rental
properties on a regular and continuing basis on behalf of
[Appellant], at the request of [Appellant] and/or with
[Appellant's] full knowledge and complicity: maintained
physical files at her work station on each of
[Appellant's] tenants, containing leases, rent payment
receipts, letters[, ] and other correspondence; contacted
prospective or current tenants in writing or by telephone;
met with prospective or current tenants at the Criminal
Justice Center, either in [Appellant's] chambers or other
parts of the building, for purposes of signing leases,
collecting rent[, ] or addressing other rental issues;
prepared lease agreements, eviction complaints, affidavits of
possession, writs[, ] and other court documents relating to
rental properties; prepared  payments[ and] mailed
correspondence to tenants regarding delinquent rental
payments; filed eviction complaints, judgments[, ] and other
court documents  at Landlord Tenant Court; appeared at
landlord/tenant proceedings concerning [Appellant's]
eviction actions; placed advertisements for [Appellant's]
rental properties with local newspapers; received and
returned telephone calls from prospective tenants resulting
from the advertisements; corresponded with, and/or
telephoned, utility companies which serviced
[Appellant's] rental properties; prepared and mailed
payment checks to utility companies for bills relating to
[Appellant's] rental properties; prepared and made bank
deposits of rental payment proceeds; [and] organized receipts
relating to [Appellant's] properties for submission to an
accountant for preparation of [Appellant's] tax returns.
Fleming engaged in . . . the following activities concerning
all of [Appellant's] properties (both rental and
non-rental), on a regular and continuing basis, on behalf of
[Appellant], at the request of [Appellant] and/or with
[Appellant's] full knowledge and complicity: corresponded
with, telephoned[, ] and/or visited L&I concerning
violations issued to [Appellant]; corresponded with,
telephoned[, ] and/or visited various government offices
(i.e. Water Department and Department of Revenue)
for purposes of paying bills or property taxes; received
invoices, prepared and mailed checks for payment of various
bills relating to [Appellant's] properties, including
utility companies, construction contractors, government
agencies[, ] and retail vendors.
The[se] activities . . . were performed by Fleming primarily
at her work station in [Appellant's] judicial chambers
between the hours of 8:30 a.m. and 4:30 p.m. At times, when
it was necessary for [Appellant] to advertise a rental
vacancy, he used, or otherwise permitted, his judicial office
address and/or telephone number to be listed in classified
rental advertisements, written correspondence to tenants or
prospective tenants, and on rental signs. While engaging in
the conduct described . . . above, [Appellant] and Fleming
utilized court resources, including but not limited to,
computers, telephones, fax machine, paper, envelopes[, ] and
In re Berry, 979 A.2d 991, 994-996 (Pa. Ct. Jud.
Disc. 2009) (Kurtz, J., opinion announcing the judgment of
the court) (certain paragraph breaks and paragraph numbers
omitted); see also Commonwealth's Exhibit 1
(stipulation of facts entered into by Appellant upon which
the above factual summary was based).
procedural history of this case is as follows. On September
4, 2014, the Commonwealth charged Appellant via criminal
information with conflict of interest and theft of
services. On February 9, 2015, Appellant moved to
dismiss the charges. The motion was denied prior to trial. On
July 22, 2015, Appellant was found guilty of both offenses.
On December 11, 2015, the trial court sentenced Appellant to
an aggregate term of three years' probation and deferred
a determination regarding the amount of restitution owed by
December 15, 2015, Appellant filed a notice of appeal. On
February 4, 2016, the trial court set the amount of
restitution. On February 8, 2016, the trial court
ordered Appellant to file a concise statement of errors
complained of on appeal ("concise statement").
See Pa.R.A.P. 1925(b). On February 29, 2016,
Appellant filed his concise statement. On April 26, 2016, the
trial court issued its Rule 1925(a) opinion. Both of
Appellant's issues were included in his concise
statement. Appellant presents two issues for our review:
1. Whether the trial court erred, abused its discretion, and
unfairly prejudiced [Appellant] when [it] denied the motion
to discharge and dismiss the case[?]
2. Whether the trial court erred, abused its discretion, and
unfairly prejudiced [Appellant] when [it] foreclosed defense
counsel from questioning a witness about an oral agreement
not to prosecute[?]
Brief at 4 (complete capitalization omitted).
first issue, Appellant argues that the trial court erred in
denying his motion to dismiss because 65 Pa.C.S.A. §
1103(a) and 18 Pa.C.S.A. § 3926(a)(1) are
unconstitutional. As the constitutionality of a statute is a
pure question of law, our standard of review is de
novo and our scope of review is plenary.
Commonwealth v. Proctor, 156 A.3d 261, 268 (Pa.
Super. 2017) (citation omitted). "Our Supreme Court has
instructed that we must presume that statutes are
constitutional and require those challenging the
constitutionality of a statute to demonstrate that it
clearly, plainly, and palpably violates the
constitution." Commonwealth v. Felder, 75 A.3d
513, 516 (Pa. Super. 2013), appeal denied, 85 A.3d
482 (Pa. 2014) (citation omitted).
"When attacking the constitutionality of a statute, an
appellant can raise two types of challenges: facial and
as-applied." Commonwealth v. Thompson, 106 A.3d
742, 763 (Pa. Super. 2014), appeal denied, 134 A.3d
56 (Pa. 2016) (citation omitted). Appellant facially
challenges sections 1103(a) and 3926(a)(1). A defendant
"can succeed in a facial challenge to the
constitutionality of a statute only by establishing that no
set of circumstances exists under which the challenged
statute would be valid, i.e., that the law is
unconstitutional in all of its applications[.]"
Commonwealth v. McKown, 79 A.3d 678, 687 (Pa. Super.
2013), appeal denied, 91 A.3d 162 (Pa. 2014)
first challenges the constitutionality of section
3926(a)(1).Although the docket and judgment of
sentence state Appellant was convicted under section
3926(a)(1), these were patent and obvious clerical errors.
See Commonwealth v. Young, 695 A.2d 414, 419-420
(Pa. Super. 1997). Appellant was charged with, and convicted
of, violating 18 Pa.C.S.A. § 3926(b). See
Criminal Information, 9/11/14, at 1; N.T., 7/22/15, at 32.
Accordingly, we need not address the constitutionality of
section 3926(a)(1) as Appellant was not convicted of
violating that statute. As we ultimately vacate Appellant's
judgment of sentence and remand for resentencing, we decline
to modify the trial court's sentencing order.
argues that section 1103(a) is facially unconstitutional for
three reasons. First, he argues that it exceeded the General
Assembly's authority under the Pennsylvania Constitution.
Second, he argues that it is unconstitutionally overbroad
because it infringes upon his right to freedom of speech.
Third, he argues that it is unconstitutionally vague.
1103(a) provides that, "No public official or public
employee shall engage in conduct that constitutes a conflict
of interest." 65 Pa.C.S.A. § 1103(a).
"Conflict of interest" is defined 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