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Commonwealth v. Berry

Superior Court of Pennsylvania

July 10, 2017

COMMONWEALTH OF PENNSYLVANIA, Appellee
v.
WILLIS BERRY, Appellant

         Appeal from the Judgment of Sentence December 11, 2015 In the Court of Common Pleas of Philadelphia County Criminal Division at No(s): CP-51-CR-0008847-2014

          BEFORE: OLSON, SOLANO and MUSMANNO, JJ.

          OPINION

          OLSON, J.

         Appellant, 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.

         The 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 enforcement action.
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 postage.

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).

         The procedural history of this case is as follows. On September 4, 2014, the Commonwealth charged Appellant via criminal information with conflict of interest[1] and theft of services.[2] 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 Appellant.

         On December 15, 2015, Appellant filed a notice of appeal. On February 4, 2016, the trial court set the amount of restitution.[3] 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[?]

         Appellant's Brief at 4 (complete capitalization omitted).

         In his 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) (citations omitted).

         Appellant first challenges the constitutionality of section 3926(a)(1).[4]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).[5] 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.[6] As we ultimately vacate Appellant's judgment of sentence and remand for resentencing, we decline to modify the trial court's sentencing order.

         Appellant 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.

         Section 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 ...

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