Com. v. Perretta-Rosepink, A.

J-A24003-13

NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA IN THE SUPERIOR COURT OF

PENNSYLVANIA

Appellee

v.

ANNA MARIE PERRETTA-ROSEPINK

Appellant No. 2154 MDA 2012

Appeal from the Judgment of Sentence November 8, 2012

In the Court of Common Pleas of Dauphin County

Criminal Division at No(s): CP-22-CR-0004272-2009

BEFORE: PANELLA, J., MUNDY, J., PLATT, J.*

MEMORANDUM BY PANELLA, J. FILED FEBRUARY 06, 2015

In this appeal, 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. We

affirm the convictions, but vacate and remand for further proceedings on

restitution.

At all relevant times, Appellant, Anna Marie Perretta-Rosepink, was an

employee of her co-defendant, Michael Veon,1 the sitting representative for

the 14th Legislative District for the Pennsylvania House of Representatives,

____________________________________________

*

Retired Senior Judge assigned to the Superior Court.

1

Veon’s appeal is docketed at 1698 MDA 2012.

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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

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

Perretta-Rosepink guilty on the following charges:

 1 count of violating 65 Pa.C.S.A. § 1103(a) (conflict of interest;

 1 count of violating 18 Pa.C.S.A.. § 3921(a) (theft by unlawful

taking);

 1 count of violating 18 Pa.C.S.A.. § 3922(a)(1) (theft by

deception);

 1 count of violating 18 Pa.C.S.A.. § 3927(a) (theft by failure to

make required disposition of funds);

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 1 count of violating 18 Pa.C.S.A.. § 4113(a) (misapplication of

entrusted property); and

 1 count of violating 18 Pa.C.S.A.. § 903 (criminal conspiracy).

The trial court subsequently sentenced Perretta-Rosepink to an aggregate

sentence of 48 months’ intermediate punishment, and ordered Veon to pay

the amount of $100,000.00 in restitution to the Commonwealth of

Pennsylvania.

Perretta-Rosepink filed post-sentence motions, which the trial court

granted in part and denied in part. The trial court granted Peretta-

Rosepink’s request for a hearing on restitution. The trial court held the

hearing and entered an order on November 8, 2012, fixing restitution at

$116,615.00. This timely appeal followed.

On appeal, Perretta-Rosepink 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 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

[Peretta-Rosepink].

a. 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[.]

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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 … [Peretta-Rosepink]’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.

Appellant’s Brief at 13-14.

In her first issue on appeal, Perretta-Rosepink argues that the

Pennsylvania conflict of interest statute is unconstitutional. The statute at

issue is Section 1103 of the Public Official and Employee Ethics Act entitled,

Restricted Activities. Specifically, subsection (a), which case law refers to as

the conflict of interest statute. See 65 Pa.C.S.A. § 1103(a) Conflict of

interest. Perretta-Rosepink argues that this statute is void for

unconstitutional vagueness and overbreadth. We disagree.

We presume that acts passed by the General Assembly are

constitutional. See Commonwealth v. Lawrence, 99 A.3d 116, 118 (Pa.

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Super. 2014). “[A] statute will not be found unconstitutional unless it

clearly, palpably, and plainly violates the Constitution. If there is any doubt

as to whether a challenger has met this high burden, then we will resolve

that doubt in favor of the statute’s constitutionality.” Id. (citation omitted).

The constitutionality of a statute presents a question of law for which our

standard of review is de novo and our scope of review is plenary. See id.

We begin with Perretta-Rosepink’s claim that the statute is

unconstitutionally vague. In order to avoid due process concerns, a statute

must not be vague. See Commonwealth v. Habay, 934 A.2d 732, 737

(Pa. Super. 2007). “The due process standards of the Federal and

Pennsylvania Constitutions are identical.” Commonwealth v. Scott, 878

A.2d 874, 878 n.4 (Pa. Super. 2005) (citations omitted). The void-for-

vagueness doctrine “requires that a penal statute define the criminal offense

with sufficient definiteness that ordinary people can understand what

conduct is prohibited and in a manner that does not encourage arbitrary and

discriminatory enforcement.” Commonwealth v. Duda, 923 A.2d 1138,

1147 (Pa. 2007) (citations omitted). Thus, “a penal statute must set forth a

crime with sufficient definiteness that an ordinary person can understand

and predict what conduct is prohibited. The law must provide reasonable

standards which people can use to gauge the legality of their contemplated,

future behavior.” Habay, 934 A.2d at 737 (citations omitted). This

specificity requirement does not require a statute to “detail criminal conduct

with utter precision,” as these competing principles are “rooted in a rough

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idea of fairness.” Id. (citations omitted). Accordingly, “statutes may be

general enough to embrace a range of human conduct as long as they speak

fair warning about what behavior is unlawful.” Id. (citations omitted).

We also note that there are two types of vagueness challenges, both of

which Perretta-Rosepink asserts in this appeal: facial vagueness and

vagueness as applied.

First, a challenge of facial vagueness asserts that the statute in

question is vague when measured against any conduct which the

statute arguably embraces. Second, a claim that a statute is

vague as applied contends the law is vague with regard to the

particular conduct of the individual challenging the statute.

For a court to entertain challenges of facial vagueness, the

claims must involve First Amendment issues. When a case does

not implicate First Amendment matters, vagueness challenges

are to be evaluated in light of the facts at hand—that is, the

statute is to be reviewed as applied to the defendant’s particular

conduct.

Id., at 738 (internal citations omitted).

The conflict of interest statute states, “[n]o public official or public

employee shall engage in conduct that constitutes a conflict of interest.” 65

Pa.C.S.A. § 1103(a). The statute defines “conflict of interest” 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

official or public employee, a member of his immediate family or

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a business with which he or a member of his immediate family is

associated.

65 Pa.C.S.A. § 1102. Definitions.

Perretta-Rosepink first claims the statute is vague on its face as it fails

to define the conduct prohibited. She maintains that the statute utilizes

general, conclusory terms. Thus, she contends that the conflict of interest

statute extends beyond illegal activity and encompasses constitutionally

protected activity—her right, as well as public officials’ and employees’ rights

as a whole, to free speech. In support, Perretta-Rosepink cites to a United

States Supreme Court case, Skilling v. United States, 561 U.S. 358

(2010), in which the appellant there asserted that the federal honest-

services statute, 18 U.S.C. § 1346, was unconstitutionally vague. Perretta-

Rosepink claims Skilling provides “direct and clear guidance when

evaluating Pennsylvania’s very similar conflict of interest statute.”

Appellant’s Brief at 27.

The Commonwealth disagrees. It argues that the conflict of interest

statute is not vague on its face. In support, it cites precedent from this

Court wherein a panel determined that the conflict of interest statute was

not unconstitutionally vague. See Commonwealth v. Habay, 934 A.2d

732 (Pa. Super. 2007). Further, the Commonwealth claims Skilling is

inapposite since the federal honest-services statute differs significantly from

the Pennsylvania conflict of interest statute.

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We can immediately dispense of Perratta-Rosepink’s reliance on

Skilling. This exact argument was rejected in Commonwealth v. Feese,

79 A.3d 1101, 1128 (Pa. Super. 2013).

We proceed to discuss Perretta-Rosepink’s argument that the statute

is facially vague. In Habay, appellant was a member of the Pennsylvania

House of Representatives who directed state-paid employees under his

authority to conduct campaign and/or fundraising-related work, during

state-paid time, for his personal benefit, and was convicted of violation of

the conflict of interest statute. On appeal, he raised, among other things, an

as applied challenge to the statute. The panel noted, however, that “even if”

he had raised a facial challenge “it is patently clear that the statute at hand

is not vague on its face.” 934 A.2d at 738. As the panel explained, the

statute is not facially vague because it specifically defines the conduct

prohibited:

There is nothing unclear about the concept of using the authority

of an office to obtain private pecuniary benefit. The statute

prohibits people who hold public offices from exercising the

power of those offices in order to secure financially related

personal gain. … Given the straightforward language of the

statute at hand, we find it sets forth the crime of conflict of

interest with sufficient definiteness that Appellant, and indeed

any ordinary person, could understand and predict what conduct

is prohibited. It speaks fair warning of the proscribed conduct.

Id. This language is admittedly dicta as it pertains to a facial challenge, but

we fully agree with the panel that it forecloses not only an as applied

challenge, but also a facial challenge.

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In essence, the statute focuses on the public resources granted to

public officials, and draws a distinct line between how an official may utilize

those resources. On one hand, it is permissible to use these resources for

government-related purposes. On the other hand, it is wholly impermissible

to utilize public resources to provide a pecuniary benefit to the office holder

or a member of their family.

Further, as previously noted, a facial vagueness challenge to a statute

must relate to First Amendment issues. In developing this argument,

however, Perretta-Rosepink fails to set forth a cognizable argument as to

why the statute, on its face, infringes upon her First Amendment right to

free speech.

The conflict of interest statute does not affect how a public official or

employee spends her own money; it affects only how the official spends

public funds. Public officials’ First Amendment rights are limited by the

government’s interest in ensuring efficient provision of government services.

See Pickering v. Board of Educ., 391 U.S. 563, 568 (1968). Perretta-

Rosepink cannot establish that a public official’s use of public funds for her

personal benefit constitutes protected First Amendment activity. That is

simply not protected speech.

In fact, we have rejected a challenge of facial vagueness where a

Pennsylvania State Senator argued that using state employees to conduct

political campaign activities on state time with state resources constitutes

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constitutionally protected free speech rights. See Commonwealth v. Orie,

88 A.3d 983, 1026 (Pa. Super. 2014). There, the panel found that the

conflict of interest statute “places no restrictions on a public official's federal

or state protected rights of expression and association, but only prohibits

officials from using state-funded resources for non-de minimis private

pecuniary gain.” Id.

Accordingly, Perretta-Rosepink has failed to demonstrate that the

statute affects a public official’s First Amendment rights, let alone that it is

unconstitutionally vague on its face. Next, we turn to Perretta-Rosepink’s

argument that the statute is unconstitutionally vague as applied to her

circumstances.

The trial court permitted the Commonwealth to argue that the

statutory term “private pecuniary gain” includes “intangible political gain”

such as “the utilization of misappropriated funds to garner favorable

publicity, to obtain free publicity, to enhance standing in the community, or

to otherwise achieve political gain.” Trial Court Opinion, 1/23/13, at 5

(citing Keller v. State Ethics Commission, 860 A.2d 650 (Pa. Cmwlth.

2004)). Perretta-Rosepink focuses on the trial court’s alleged extension of

the statutory term “private pecuniary gain” to include various “intangible

political benefits” as improper. She argues that he received no gain

whatsoever. But political gain costs money. The blatant and substantial

“intangible political gain,” as described in this case, surely constitutes private

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pecuniary gain—the misappropriated money inured to Perretta-Rosepink’s

benefit.2 She directly benefitted from Veon’s ability to continue to hold his

lucrative office through her continued employment as his legislative aide.

Veon’s scheme, and Perretta-Rosepink’s participation in it, is set forth in

detail below.

As a member of the House, Veon was entitled to $20,000.00 annually

to cover the expenses of operating his district office. See N.T., Trial,

2/22/12, at 271. In addition, he was entitled to spend $2,300.00 monthly

on office rent and vehicle costs, with office rent limited to no more than

$1,650.00 per month. See id., at 271-72. These allotments were taxpayer-

funded. See id., at 308. If a member of the House did not spend the

allotted money for rent costs, the money could not be used for any other

purposes. See id., at 271-72. On the other hand, if the House member

spent more than $1,650.00 per month on rent, the remainder would have to

be paid from the $20,000.00 annual allotment. See id., at 291.

While it was possible for a House member to exceed their allotment by

requesting a discretionary disbursement from the Democratic Minority

Leader, such a request had its drawbacks. Within the Democratic Caucus,

House members took issue with rent disparities between members. See

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2

Certainly, a de minimis private pecuniary gain, for example, when an

elected official uses an expense account to attend a county fair would not

violate the statute. We stress that it must be a non-de minimis private

pecuniary gain. See Orie, 88 A.3d at 1026.

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N.T., Trial, 2/24/12, at 60-61. The Democratic Minority Leader received “a

lot of complaints … on a lot of occasions” regarding rent disparities. Id.

Furthermore, any money disbursed pursuant to such a request was a matter

of public record. See id., at 61. “[S]ome members just didn’t want to have

the political problem of a reporter finding out they were spending way above

their allotted amount of money.” Id.

Veon’s rent payments for his offices never exceeded $1,500.00 per

month. See N.T., 2/22/12, at 296. However, he never leased his legislative

offices directly from a landlord. Veon’s Beaver Falls office was sublet from

BIG. See N.T., Trial, 2/16/12, at 104. BIG paid $2,900.00 per month in

rent to the landlord, and received $1,500.00 per month from Veon’s House

expense account. See id. BIG occupied only approximately 20% of the

Midland office. See id., at 101-102; Commonwealth’s Exhibit 5 (floor plan).

As noted previously, Veon was co-chair of BIG. See N.T. 2/16/12, at

82. BIG was originally created as a vehicle to attract and implement a

variety of economic and community development throughout Beaver County.

See id., at 75. Veon served as co-chair alongside State Senator Gerald

LaValle; however, testimony established that LaValle’s position was akin to a

figurehead, and he was not directly involved in the organization’s operations.

See id., at 83; N.T. 2/21/12, at 286-88. On the other hand, Veon was

intimately involved with the day-to-day operations of the nonprofit and was

“fiscal director” of BIG. See N.T. 2/16/12, at 85.

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Veon’s use of BIG as a means to his own personal ends was evident

from the testimony of two former BIG executive directors: John Gallo and

Thomas Woodske. John Gallo served as BIG executive director from 1999 to

2003. See N.T., 2/16/12, at 81, 218.

Shortly after his appointment to executive director, Gallo discovered

that Peretta-Rosepink was appointed as BIG’s fiscal director. See N.T.

2/16/12, at 83. Peretta-Rosepink primarily worked in the legislative office,

but would occasionally handle payroll matters, as well as the payment of

utilities. See id., at 86. It was Peretta-Rosepink who secured rental office

space in an old bank in Beaver Falls to use for both a legislative office and

for BIG. See id., at 95. Peretta-Rosepink gave the lease to Gallo to sign on

behalf of BIG; Gallo was not involved with negotiating the lease with the

landlord, nor had he ever toured the property. See id., at 95-97.

The circumstances surrounding the Midland office were even less

transparent. Due to a family emergency, Gallo was out of work for most of

February 2003, and returned to work full-time in late February or early

March. See id., at 129-30. While Gallo was away, Peretta-Rosepink

obtained the BIG checkbook from a BIG employee. See id., at 132. Upon

returning, Gallo noticed a check written by Peretta-Rosepink to Rudy

Presutti, whom Gallo did not know. See id., at 162-63. Gallo questioned

Peretta-Rosepink about the check, and she responded that the check was for

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rent payment for the new BIG office in Midland. See id., at 163. This was

the first time Gallo heard about a BIG office in Midland. See id.

Thomas Woodske succeeded John Gallo in 2003. See N.T.,

2/22/2012, at 23. He testified that Veon’s style “was not consultative at all.

He dominated the organization and ran it as he saw fit.” Id., at 12. Veon

and Peretta-Rosepink consulted Woodske on two initial hires, but afterwards,

Woodske was not consulted on four subsequent hires. See N.T. 2/21/2012,

at 197-98. Woodske was never consulted regarding the lease for the Beaver

Falls district office. See id., at 207-08. Instead, either Veon or Peretta-

Rosepink would handle the negotiation of the leases. See id., at 208.

Veon was responsible for obtaining the public funding for BIG. See

N.T. 2/16/12, at 75. In order to obtain the funds, Veon would have to apply

for grants from the DCED. See id., at 75. Upon receipt of the grant monies,

Gallo and Woodske had no idea that Veon had obtained rental properties in

Pittsburgh’s South Side or in Midland. See id., at 95-97; N.T. 2/22/12, at

11-12. Though these new offices were obtained for BIG, the majority of the

space was actually used for Veon’s legislative offices. See N.T. 2/16/12, at

96-116. There were no signs indicating that BIG occupied those offices and

those who wished to visit BIG employees needed to walk through the

legislative office. See id.

The funds from BIG made up the difference in rent in each of the

offices that exceeded the allotment Veon was allowed from the

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Commonwealth. See N.T. 2/24/12, at 105-06; N.T. 2/27/12, at 157-64. As

such, the public monies provided to BIG through the DCED as a result of

grant applications by Veon, were then used to pay for Veon’s additional

legislative offices. The money that should have been spent for BIG was

otherwise spent on securing Veon additional legislative offices.

The words in the statute surely allowed Perretta-Rosepink to know that

her actions in assisting Veon’s scheme were criminal wrongdoings. Veon,

with the assistance of Perretta-Rosepink, deliberately used funds obtained

for the purposes of BIG to rent spaces for his legislative offices. As argued

by the Commonwealth, Veon was able to maintain the façade of a thrifty

public servant, who took less than his monthly rental allotment, while

enjoying facilities superior to those he could have obtained by merely

spending his allotment, all while not expending any personal funds. Veon

treated BIG as a personal bank account from which he could pursue his own

ends. All of this was for his benefit. As noted previously, this benefit flowed

to Perretta-Rosepink in the form of continued employment as Veon’s

legislative aide. We therefore find that the conflict of interest statute is not

vague as applied to the facts of this case.

Perretta-Rosepink also contends that the conflict of interest statute is

unconstitutionally overbroad. A statute is unconstitutionally overbroad, “if it

punishes lawful constitutionally protected activity as well as illegal activity.”

Commonwealth v. Davidson, 938 A.2d 198, 208 (Pa. 2007). In Habay,

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we rejected the same overbroad argument that Perretta-Rosepink advances

in this appeal. See 934 A.2d at 739.

Perretta-Rosepink next contends that the trial court erred in permitting

a de facto modification of the information pursuant to the phrasing on the

verdict slip given to the jury. She contends this amendment changed the

factual scenario supporting the underlying charges, thus prejudicing her by

negatively affecting her ability to mount an effective defense. We disagree.

The information “is a formal written statement charging the

commission of an offense signed and presented to the court by the attorney

for the Commonwealth after a defendant is held for court….” Pa.R.Crim.P.

103. The information apprises the defendant of the filed charges so he can

prepare a defense. See Commonwealth v. Sinclair, 897 A.2d 1218, 1223

(Pa. Super. 2006).

Pennsylvania Rule of Criminal Procedure 564 permits the amendment

of the information “when there is a defect in form, the description of the

offense(s), the description of any person or any property, or the date

charged, provided the information as amended does not charge an additional

or different offense.” Pa.R.Crim.P. 564. “[T]he purpose of Rule 564 is to

ensure that a defendant is fully apprised of the charges, and to avoid

prejudice by prohibiting the last minute addition of alleged criminal acts of

which the defendant is uninformed.” Sinclair, 897 A.2d at 1221 (citation

omitted). A court must look to see

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[w]hether the crimes specified in the original indictment or

information involve the same basic elements and evolved out of

the same factual situation as the crimes specified in the

amended indictment or information. If so, then the defendant is

deemed to have been placed on notice regarding his alleged

criminal conduct. If, however, the amended provision alleges a

different set of events, or the elements or defenses to the

amended crime are materially different from the elements or

defenses to the crime originally charged, such that the defendant

would be prejudiced by the change, then the amendment is not

permitted.

Id. (citation omitted).

Relief is only proper where the amendment prejudices the defendant.

See id., at 1223. A court must consider a number of factors in determining

whether an amendment results in prejudice:

(1) whether the amendment changes the factual scenario

supporting the charges; (2) whether the amendment adds new

facts previously unknown to the defendant; (3) whether the

entire factual scenario was developed during a preliminary

hearing; (4) whether the description of the charges changed

with the amendment; (5) whether a change in defense strategy

was necessitated by the amendment; and (6) whether the timing

of the Commonwealth’s request for amendment allowed for

ample notice and preparation.

Id. (citation omitted).

In this instance, Perretta-Rosepink initially objected to the verdict slip

given to the jury, noting that the slip was ambiguous as to which legislative

district office was the subject of the prosecution. The trial court denied the

objection and sent the jury to deliberate with the verdict slip unmodified.

After retiring to the deliberation room, the jury requested a clarification of

the jury slip: “In regards to all counts stating (rent/legislative district

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office), does that refer to Midland, Beaver Falls, or both?” Perretta-Rosepink

renewed her objection to the variance between the information and the

verdict slip. The trial court overruled the objection and instructed the jury

that his answer to their question was “either, both or neither, as you may

find from the evidence presented.”

Perretta-Rosepink argues that this de facto amendment changed the

factual scenario in violation of all six factors for examining prejudice

mentioned above. See Sinclair, 897 A.2d at 1223. We agree with the trial

court that Perretta-Rosepink’s focus on the distinction between a single or

multiple offices is a red herring:

The unlawfully diverted funds (i.e. the “BIG” grant monies) from

which those offense(s) arose were used to make monthly rental

payments based upon which Mr. Veon received legislative district

office space in both Beaver Falls and Midland. Thus, any

distinction between the two was, we believe, immaterial so long

as the jury found that Mr. Veon directed, authorized and/or

approved the use of those misappropriated funds for his own

political purposes.

Trial Court Opinion, 1/23/13, at 4.

The essence of the various charges at issue was that Veon had used

BIG funds for his personal benefit, and that Peretta-Rosepink had assisted

him this scheme. There was no factual dispute over whether BIG funds had

been expended in the relevant transactions. The only dispute was whether

the BIG funds had been expended for appropriate purposes, or whether they

had been used for Veon’s own personal gain. Again, Veon’s benefit then

flowed to the benefit of Perretta-Rosepink in the form of continued

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employment as a legislative aide. The distinction between the offices was

not relevant—at all—to the nature of the charges or to any possible defense.

We therefore find that the variance between the amended criminal

information and the verdict slip, as clarified by the trial court, did not

prejudice Perretta-Rosepink.

Perretta-Rosepink next argues that the trial court erred in ordering

restitution as the Commonwealth cannot be a victim for purposes of the

restitution statute. In support, she relies on the plain text of the statute, as

well as Commonwealth v. Brown, 981 A.2d 893 (Pa. 2009), which

provided further clarification of the term “victim” for purposes of the

restitution statute.

“[R]estitution is the requirement that the criminal offender repay, as a

condition of his sentence, the victim or society, in money or services.” Id.,

at 895 (footnote omitted). It acts to rehabilitate the offender “by impressing

upon him or her that his criminal conduct caused the victim’s loss or

personal injury and that it is his responsibility to repair the loss or injury as

far as possible.” Id. (citation omitted). “[I]t is highly favored in the law and

encouraged so that the criminal will understand the egregiousness of his or

her conduct, be deterred from repeating the conduct, and be encouraged to

live in a responsible way.” Id. (citation omitted).

Section 1106 of the Crimes Code mandates that restitution be paid

“[u]pon conviction for any crime wherein property has been stolen,

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converted or otherwise unlawfully obtained….” 18 Pa.C.SA. § 1106(a). The

statute further sets forth the individuals and entities entitled to restitution:

(A) the victim; … (C) “[a]ny other government agency which has provided

reimbursement to the victim as a result of the defendant’s criminal

conduct….” 18 Pa.C.S.A. § 1106(c)(1)(ii)(A, C).

Prior to 1995, the statutory language of Section 1106 did not include

Commonwealth entities under the definition of “victim.” See

Commonwealth v. Runion, 662 A.2d 617, 621 (Pa. 1995) (“[U]nless or

until the legislature enacts language to the contrary, we must find that the

Department of Public Welfare, as a Commonwealth entity, is expressly

excluded from the definition of a ‘person,’ and as such may not be

considered a victim under 18 Pa.C.S. § 1106.”). Subsequently, the

legislature amended Section 1106 in 1995 and again in 1998, broadening

the class of entities eligible to receive restitution to include the Crime

Victim’s Compensation Board, other government agencies, and insurance

companies. See 18 Pa.C.S.A. § 1106(c)(1)(ii)(A-D). While the legislature

broadened the definition of those eligible for restitution to include

government agencies, the language utilized in the amendments did not

include all government agencies. This limitation is evident in our Supreme

Court’s analysis of Section 1106 in Brown.

In Brown, the trial court ordered the defendant to pay restitution to

Medicare, which had paid a part of the amount the crime victim owed to a

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hospital that had treated the victim’s injuries. The issue before the Supreme

Court in Brown was whether Medicare was entitled to restitution from

defendant. Looking at the plain language of the statute, the Court

concluded that while it appeared that the legislature sought to include

government agencies within Section 1106, it was not clear exactly which

agencies qualified. Thus, the Court turned to established principles of

statutory construction, focusing heavily on the legislative history of Section

1106, to determine that the 1995 and 1998 amendments “implicitly

broadened the class of entities eligible for restitution to include government

agencies….” 981 A.2d at 899-900. Next, the Court sought to determine

exactly which agencies were encompassed by these amendments.

Brown argued that restitution was only available to those government

agencies that paid victims directly. Thus, since Medicare paid the victim’s

medical providers and not the victim directly, Brown contended that it was

not entitled to restitution. The Court disagreed, stating, “to find restitution

available only to those entities which directly paid the victim would place

form over substance and ignore the realities of medical reimbursement.”

Id., at 901.

The Court acknowledged that the term “reimbursement” was not

defined in the statute, “but as evinced by the broadened Section 1106, the

General Assembly not only expressed an increased focus on the importance

of mandatory restitution, it believed that criminal offenders should both

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provide restitution to the victim directly, and to entities incurring expenses

on the victim’s behalf.” Id., at 900. Further, the Court considered the dual

purposes of restitution: rehabilitation and deterrence.

[T]he main purpose behind the statute is rehabilitation of the

offender by impressing upon him that this criminal conduct

caused the victim’s loss or personal injury and that it is his

responsibility to repair the loss or injury as far as possible, and

that compensation to the victim is only secondary. Furthermore,

the goals of restitution include the hope that the criminal will be

deterred from repeating the conduct and encouraged to live in a

responsible way.

Id., at 901 (citations omitted). Finally, the Court concluded that allowing

those entities that directly and indirectly compensate the victim of a crime to

be eligible for restitution would be consistent with the goals of rehabilitation

and deterrence, as well as consistent with the goal to be obtained by the

amended statute.

We conclude that the Commonwealth can be a victim under this

statute. As noted in Brown, the General Assembly intended to have the

restitution statute serve as deterrence for criminals. It would therefore be

contrary to the statute’s purpose and the General Assembly’s intent—not to

mention common sense—to have a defendant directly steal from the

Commonwealth, specifically the DCED, and not be liable for restitution.

Limiting restitution sentences to instances where the Commonwealth only

reimburses a third party victim would otherwise encourage criminals to steal

from the Commonwealth. As the Court expressed in Brown, to hold

otherwise would place form over substance and ignore the realities and

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purpose of the statute. Therefore, we must conclude that the

Commonwealth is a victim to which an order of restitution can be paid when

the Commonwealth is the direct victim of a crime.

We now turn to whether the amount of restitution ordered by the trial

court was proper. Perretta-Rosepink contends that the amount of restitution

ordered by the trial court was both speculative and excessive. Perretta-

Rosepink’s claim that the order of restitution is unsupported by the record

challenges the legality of the sentence. See Commonwealth v. Atanasio,

997 A.2d 1181, 1183 (Pa. Super. 2010). “[T]he determination as to whether

the trial court imposed an illegal sentence is a question of law; our standard

of review in cases dealing with questions of law is plenary.” Id. (citation

omitted).

A court must be guided by the following when computing restitution:

Although restitution does not seek, by its essential nature, the

compensation of the victim, the dollar value of the injury

suffered by the victim as a result of the crime assists the court in

calculating the appropriate amount of restitution. A restitution

award must not exceed the victim’s losses. A sentencing court

must consider the victim’s injuries, the victim’s request as

presented by the district attorney and such other matters as the

court deems appropriate. The court must also ensure that the

record contains the factual basis for the appropriate amount of

restitution. In that way, the record will support the sentence.

Commonwealth v. Plegler, 934 A.2d 715, 720 (Pa. Super. 2007) (citations

omitted).

Turning to the merits, we find that the trial court’s order of restitution

in the amount of $116,615.00 is supported by the record. The amount of

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the restitution was based on the rent payments from each of Veon’s offices

in Midland and Beaver Falls, minus the amount of money the comptroller’s

office deposited into BIG.

Despite the record’s support for the amount of the restitution,

however, the causal connection between the jury’s guilty verdict and the

amount of restitution is missing. While the jury found Perretta-Rosepink

guilty on counts regarding the rent of the legislative offices, the guilty

verdict indicated that the jury found Peretta-Rosepink guilty of stealing with

respect to either legislative office, both legislative offices, or neither office.

Therefore, the record does not specify which legislative office Peretta-

Rosepink’s thefts were related to, nor can it be assumed or speculated by

the trial court that the jury convicted Peretta-Rosepink of theft related to

both offices (Midland or Beaver Falls). As such, the trial court could not

properly determine which office the jury had in mind when it issued its guilty

verdict. Therefore, the trial court’s method of calculating restitution had no

basis for determining the causal connection of the damages that stemmed

from the guilty verdicts.

Our resolution of this issue does not contradict our earlier discussion of

the verdict slip. While the location of the offices was irrelevant to whether

Perretta-Rosepink committed the crimes charged, the specific method of

calculating restitution chosen by the trial court relies directly upon where the

stolen funds were spent. Since the verdict slip, as clarified by the trial court,

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equally supports jury findings that Veon, with Perretta-Rosepink’s

assistance, spent the stolen funds on only the Beaver Falls office, only the

Midland office, or both, picking any one of these three options constitutes

mere speculation. Accordingly, we conclude that the record before us does

not support a finding of a direct causal relationship between the amounts

paid for rent at each office and the jury’s verdict.

Therefore, the trial court erred in its order of sentence of restitution in

the amount of $116,615.00. The amount of restitution must be vacated as

there is no causal connection between the guilty verdicts and the losses

sustained by the victim. Upon remand, the trial court is to determine if

there is an appropriate method to calculate restitution in light of our

decision.

Perretta-Rosepink also argues that the Commonwealth cannot be a

victim under 18 Pa.C.S.A. § 3921, Theft by unlawful taking or disposition, 18

Pa.C.S.A. § 3922, Theft by deception, and 18 Pa.C.S.A. § 3927, Theft by

failure to make required disposition of funds received.

Recently, this Court decided the exact argument posed by Perretta-

Rosepink concerning whether the Commonwealth could be victim under 18

Pa.C.S.A. § 3921 and § 3922 in Commonwealth v. Stetler, 95 A.3d 864

(Pa. Super. 2014), wherein the panel adopted the trial court’s opinion in the

matter as its own. See id., at 882. As such, we affirm Perretta-Rosepink’s

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guilty verdict on the charges of theft by deception and theft by unlawful

taking.

We next address Perretta-Rosepink’s challenge to the guilty verdict on

the charges of theft by failure to make required disposition funds received.

That crime is defined as follows:

(a) Offense defined.--A person who obtains property upon

agreement, or subject to a known legal obligation, to make

specified payments or other disposition, whether from such

property or its proceeds or from his own property to be reserved

in equivalent amount, is guilty of theft if he intentionally deals

with the property obtained as his own and fails to make the

required payment or disposition. The foregoing applies

notwithstanding that it may be impossible to identify particular

property as belonging to the victim at the time of the failure of

the actor to make the required payment or disposition.

18 Pa.C.S.A. § 3927(a).

Perretta-Rosepink argues that under this provision of the Crimes Code

the Commonwealth cannot be a victim since the statute does not specify if

the victim must be a person or government entity. We reject this argument.

Section 3927(a) requires a person who accepts money or property of

another pursuant to an agreement to meet the obligations of the agreement.

See Commonwealth v. Wood, 637 A.2d 1335, 1344 (Pa. Super. 1994).

An agent who has received funds subject to an obligation to make a required

payment may commingle funds if he so chooses without penalty as long as

the obligation for which the money or property is entrusted is met in a

timely fashion. See Commonwealth v. Fritz, 470 A.2d 1364, 1366 (Pa.

Super. 1990). “The language of the statute, that a person is guilty of theft

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by failure to make required disposition of funds if he ‘deals with property as

his own,’ does not require that the defendant actually use the property of

another.” Wood, 637 A.2d at 1344 (emphasis added). The word “deals”

means that the defendant took the property designed for a specific use and

used it as if it were his or her own property. See id.

As such, the case law indicates that the emphasis of the statute is

centered on the actions of the defendant—not the status of the victim. It is

clear that the language of Section 3927(a) requires convictions of any actor

that uses property of another inappropriately and fails to perform according

to the legal obligation. That is exactly what Veon did here, with Perretta-

Rosepink’s assistance. Thus, her argument fails.

Next, Perretta-Rosepink alleges the prosecution improperly destroyed

witness interview notes thus depriving her of a fair trial. Further, she claims

that such destruction violated a litany of constitutional rights, rules of

criminal procedure, and rules of professional conduct. We begin by noting

that Perretta-Rosepink has failed to properly present this issue for review by

improperly incorporating her argument by reference. Specifically, Perretta-

Rosepink states, “[t]he specific issue of destruction of notes by the

prosecutors in the Bonusgate prosecutions has been raised by the defense in

the matter of Commonwealth v. Feese at Superior Court No. 338 MDA

2012.” Appellant’s Brief, at 73. Perretta-Rosepink includes Feese’s brief in

the Reproduced Record.

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Perretta-Rosepink’s argument fails for several reasons. As it turns out,

this issue did not provide relief for Feese. See Commonwealth v. Feese,

79 A.3d 1101, 1105-1115 (Pa. Super. 2013). Furthermore, this issue is

waived as Rule 2119(a) of the Rules of Appellate Procedure requires a

properly developed argument for each question presented. This requires,

among other things, a discussion of and citation to authorities in the

appellate brief and “the principle for which they are cited.” See Pa.R.A.P.

2119(a), (b). Failure to conform to the Rules of Appellate Procedure results

in waiver of the underlying issue. See Commonwealth v. Buterbaugh, 91

A.3d 1247, 1262 (Pa. Super. 2014) (en banc). Incorporation by reference

does not constitute a properly developed claim.

Our Supreme Court has categorically rejected incorporation by

reference as a means of presenting an issue. The Court has called the

practice “unacceptable” and explained, “our appellate rules do not allow

incorporation by reference of arguments contained in briefs filed with other

tribunals, or briefs attached as appendices, as a substitute for the proper

presentation of arguments in the body of the appellate brief.”

Commonwealth v. Briggs, 12 A.3d 291, 342-343 (Pa. 2011) (citations

omitted). The allowance of incorporation by reference “would enable

wholesale circumvention of our appellate rules which set forth the

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fundamental requirements every appellate brief must meet.” Id., at 343

(citations omitted). Accordingly, we find this issue waived.3

Judgment of sentence affirmed, restitution award vacated. Case

remanded for further restitution proceedings consistent with this decision.

Jurisdiction relinquished.

Judgment Entered.

Joseph D. Seletyn, Esq.

Prothonotary

Date: 2/6/2015

____________________________________________

3

Perretta-Rosepink admittedly presents no factual support for her claim that

the prosecutor admitted to the destruction of interview notes. See

Appellant’s Brief at 72 n.22 (“The original admission by Mr. Fina does not

appear in the record.”). The trial court determined that “[a]fter thoroughly

questioning the prosecutors in this case, we found there to be no evidence

which demonstrated that the prosecutors, or their agents, destroyed notes

and/or documentation that had not already been memorialized in written

form and disclosed to the defense.” Trial Court Opinion, 1/23/13, at 6.

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