Com. v. McLaine, P.

J-A17013-15

NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA IN THE SUPERIOR COURT OF

PENNSYLVANIA

Appellee

v.

PATRICK JOSEPH MCLAINE

Appellant No. 2600 EDA 2013

Appeal from the Judgment of Sentence July 31, 2013

In the Court of Common Pleas of Northampton County

Criminal Division at No(s): CP-48-CR-0000830-2012

BEFORE: GANTMAN, P.J., BENDER, P.J.E., and OTT, J.

MEMORANDUM BY OTT, J.: FILED NOVEMBER 13, 2015

Patrick Joseph McLaine appeals from the judgment of sentence

imposed on July 31, 2013, in the Court of Common Pleas of Northampton

County. On January 11, 2013, a jury convicted McLaine and his co-

defendant, Robert J. Kearns,1 of theft by failure to make required disposition

of funds received.2 As will be discussed below, the court ultimately

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1

Kearns has also filed an appeal at Docket No. 2480 EDA 2013, raising

substantially similar claims. The Commonwealth has filed cross-appeals with

respect to McLaine and Kearns at Docket Nos. 1685 EDA 2013 and 1682 EDA

2013, respectively. On April 2, 2015, the Commonwealth filed an application

for consolidation of all four companion cases. By per curiam order entered

on April 21, 2015, this Court denied the Commonwealth’s application for

consolidation, but directed that the appeals be listed consecutively.

2

18 Pa.C.S. § 3927.

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sentenced McLaine to a term of six to 12 months’ incarceration, 12 months’

probation, a fine of $2,500.00, and restitution in the amount of

$832,460.00. On appeal, McLaine raises numerous issues, concerning the

legality of his sentence, the sufficiency of the evidence, the weight of the

evidence, the admissibility of certain evidence, and prosecutorial

misconduct. After a thorough review of the submissions by the parties, the

certified record, and relevant law, we affirm the conviction, but are

constrained to vacate the sentence and remand for resentencing.

The facts and procedural history are as follows.3 McLaine and Kearns

were the two principals of a company known as Municipal Energy Managers,

Inc. (“MEM”). On July 2, 2007, McLaine and Kearns entered into a written

contract with the Township of Bethlehem, a municipality in Northampton

County (“Bethlehem Township”). The contract provided MEM would act as

an agent for Bethlehem Township to facilitate the purchase of township

street lights from the public utility company, Pennsylvania Power and Light

(“PPL”).4 McLaine and Kearns drafted the contract and determined the total

cost to do all work necessary for Bethlehem Township to purchase the street

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3

The trial court set forth a detailed and thorough factual and procedural

history in its Pa.R.A.P. 1925(a) opinion. See Trial Court Opinion, 6/2/2014,

at 1-31. We will refer back to the court’s recitation in our analysis.

4

The purpose was to save the township money by accessing a lower utility

rate for municipal-owned streetlights.

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lights from PPL. A price of $1,001,230.00 was to be used to pay any and all

costs of the purchase including, but not limited to, paying PPL for the

transfer of the street lights. The contract provided performance was to

occur within a period of 12 to 18 months, ending anywhere between July 2,

2008 and January 2, 2009, and was considered completed when ownership

of the street lights was transferred from PPL to the township. Additionally,

the contract stated the township would be receiving the lower utility rate by

January of 2009. For its services, MEM was to receive a five percent

commission of $50,060.00.

To begin performance, MEM requested Bethlehem Township pay them

$832,460.00. On July 3, 2007, McLaine and Kearns received a check in the

requested amount. On July 5, 2007, the check was deposited into a general

corporate bank account in the name of MEM, which McLaine and Kearns

jointly controlled.5

In October 2007, McLaine and Kearns wrote checks from the MEM

general corporate account to themselves. Specifically, on October 1, 2007,

a check was made payable to Kearns for the amount of $366,600.00. That

same day, a check was issued to McLaine in the amount of $499,945.000, as

well as a second check to McLaine in the amount of $109,059.00. All three

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5

With respect to the contract, there was no escrow requirement that

Bethlehem Township’s funds be held separately from the rest of MEM’s other

accounts. See N.T., 1/10/2013, at 162 (“The evidence reveals that the

Commonwealth admits there was no escrow requirement.”).

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checks were signed by both defendants. At trial, McLaine and Kearns

testified these checks represented bonuses paid to themselves.

On August 5, 2009, PPL sent a letter to Kearns, stating that it had

learned MEM was performing unauthorized work on its streetlights. The

letter identified Bethlehem Township as one of the affected municipalities.

Despite receiving the funds, MEM did not contact PPL to initiate the

transfer of street lights until August 10, 2009, eight months past the 18-

month completion deadline, by sending a letter announcing its intent to

purchase the streetlights. On September 17, 2009, PPL sent a letter to

MEM, outlining the estimated costs of the total project, which was to be

$271,180.00, well below MEM’s estimate of $1,001,230.00. The letter also

requested MEM make a deposit to PPL in the amount of $22,525.00 in order

to initiate the process of the light transfer. McLaine and Kearns did not

respond to PPL’s request or make the payment. On October 5, 2009, MEM

sent Bethlehem Township an invoice for $131,438.00. The township did not

pay it.

In January of 2010, a grand jury investigation was conducted in

relation to this matter. On January 26, 2012, the grand jury returned a

presentment, recommending the arrest of McLaine and Kearns on charges of

theft by failure to make required disposition of funds received,

misapplication of entrusted property, and criminal conspiracy.

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A criminal complaint was then filed on February 16, 2012. As noted

above, the two men were tried together. The joint jury trial began on

January 7, 2013. On January 11, 2013, the jury found McLaine and Kearns

guilty of theft by failure to make required disposition of funds received, but

not guilty of the other two charges.

On April 12, 2013, and April 19, 2013, McLaine and Kearns,

respectively, were both sentenced to a term of 16 of 60 months’

incarceration, 60 months of probation, and restitution in the amount of

$832,460.00. The court graded the theft offense as a third-degree felony

pursuant to 18 Pa.C.S. § 3903 (grading of theft offenses) on the basis that

the value of the theft was in excess of $2,000.00.

On April 24, 2013, McLaine and Kearns filed motions challenging the

trial court’s grading of the offense as a third-degree felony pursuant to

Apprendi v. New Jersey, 530 U.S. 466 (2000). They argued that the

verdict slip could not support a felony conviction because it did not require

the jury to determine the value of the property that gave rise to the

convictions, i.e., the commencement check issued by Bethlehem Township.

The trial court agreed and on May 31, 2013, granted the motion.

On June 4, 2013, the court re-sentenced McLaine and Kearns with

regard to the theft offense, grading it as a third-degree misdemeanor, and

ordered them to serve a term of six to 12 months’ incarceration, 60 months’

probation, a fine of $2,500.00, and restitution in the amount of

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$832,460.00. Subsequently, on June 13, 2013, McLaine and Kearns filed

post-sentence motions, including a motion for reconsideration of sentence.

On July 31, 2013, the trial court entered an order, modifying their sentences

to a consecutive period of probation of 12 months rather than 60 months.

The remainders of their sentences were not changed. This appeal followed.6

McLaine raises the following issues on appeal:

1. Whether the jury’s verdict was supported by sufficient

evidence?

2. Whether the jury’s verdict was against the weight of the

evidence?

3. Whether the trial court erred in permitting the introduction

of [McLaine’s] alleged prior bad acts arising in other

jurisdictions, where those acts were not convictions, were

not substantially related to the case at hand, and did [not]

fall under an exception to the prohibition against the

admission of prior bad acts?

4. Whether, where PPL records were relevant and necessary

to the presentation of a defense in this case, the trial court

erred in quashing [McLaine]’s pre-trial subpoena of such

records?

5. Whether, following the District Attorney’s inappropriate

reference to [McLaine] as a “crook in a suit” and “Ponzi

scheme operator,” in his closing argument, the trial court

erred in failing to grant a mistrial?

6. Whether, where the solicitor conducting the deposition was

acting in concert with the prosecuting district attorney, the

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6

On August 9, 2013, the trial court ordered McLaine to file a concise

statement of errors complained of on appeal pursuant to Pa.R.A.P. 1925(b).

McLaine filed a concise statement on August 28, 2013. The trial court issued

an opinion pursuant to Pa.R.A.P. 1925(a) on June 2, 2014.

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lower court failed to suppress statements made at

[McLaine]’s deposition in the absence of Miranda[7]

Warnings?

7. Whether, where [McLaine] was convicted of Theft by

Failure to Make Required Disposition of Funds, a

misdemeanor of the third degree, the maximum penalty

for which is one year of incarceration, the trial court

illegally sentenced [McLaine] to six to twelve months of

incarceration plus one year of consecutive probation?

McLaine’s Brief at 9.8

In his first issue, McLaine complains there was insufficient evidence to

support his theft conviction.

Our standard of review for such challenges is well-settled:

[W]hether[,] viewing all the evidence admitted at trial in

the light most favorable to the [Commonwealth as the]

verdict winner, there is sufficient evidence to enable the

fact-finder to find every element of the crime beyond a

reasonable doubt. In applying [the above] test, we may

not weigh the evidence and substitute our judgment for

the fact-finder. In addition, we note that the facts and

circumstances established by the Commonwealth need not

preclude every possibility of innocence. Any doubts

regarding a defendant’s guilt may be resolved by the fact-

finder unless the evidence is so weak and inconclusive that

as a matter of law no probability of fact may be drawn

from the combined circumstances. The Commonwealth

may sustain its burden of proving every element of the

crime beyond a reasonable doubt by means of wholly

circumstantial evidence.

Commonwealth v. Troy, 2003 PA Super 340, 832 A.2d 1089,

1092 (Pa.Super.2003) (citations omitted).

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7

See Miranda v. Arizona, 384 U.S. 436 (1966).

8

We have reorganized and renumbered the issues for our analysis.

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Commonwealth v. Gonzalez, 109 A.3d 711 (Pa. Super. 2015), appeal

denied, __ A.3d __ [270 MAL 2015] (Pa. Sept. 29, 2015).

Theft by failure to make required disposition of funds received is

defined as follows:

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. § 3927.

The crime has four elements:

1. The obtaining of property of another;

2. Subject to an agreement or known legal obligation upon the

recipient to make specified payments or other disposition

thereof;

3. Intentional dealing with the property obtained as the

defendant’s own; and

4. Failure of the defendant to make the required disposition of

the property.

Commonwealth v. Crafton, 367 A.2d 1092, 1094-1095 (Pa. Super. 1976).

Here, McLaine states three of the four elements were not met. With

respect to the first element, he argues the Commonwealth did not

demonstrate he “obtained the property of another” because, where, as here,

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a party partially performs under a contract, and advance money is paid

pursuant to that contract, that advanced money cannot be considered the

property of another. McLaine’s Brief at 22. Relying on Commonwealth v.

Austin, 393 A.2d 36 (Pa. 1976), McLaine alleges MEM and Bethlehem

Township entered into a binding contract, Bethlehem Township made an

advance payment pursuant to the contract, MEM partially performed under

the contract, and therefore, McLaine did not obtain the money as property of

another. McLaine’s Brief at 22-23. In support of his argument, he notes the

contract called for “make ready work” to be completed on the streetlights

prior to completion, and that MEM actually did perform such work was

evidenced by a $50,000 invoice it received from a subcontractor regarding

the project. Id. at 24. Furthermore, McLaine claims MEM’s actions indicated

both an intent to comply with the contract from its inception and partial

performance of the contractual obligation. Id. at 25. As such, McLaine

contends the Commonwealth failed to prove specific intent. Id. Moreover,

he states the intention of the owner becomes the primary focus to determine

if possession has passed, and here, no facts indicated that Bethlehem

Township ever expected a return of the money paid to MEM. Id. at 27.

Rather, McLaine asserts the township merely sought the contractual duties

be performed. Id. He states MEM intends to make good on the contract,

but was impeded by the actions of a third party, PPL. Id.

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With respect to the second element, McLaine argues the

Commonwealth did not establish the conduct at issue was “subject to an

agreement or known legal obligation upon the recipient to make specific

payments or other disposition thereof.” Id. at 30. He states that while a

deposit was tendered to MEM, Bethlehem Township “oversimplifies” the

terms of the contract, and although some of the money was to be used to

purchase the streetlights, other money was to be used for other services

provided by MEM and were provided pursuant to the terms of the

agreement, including the make ready work and maintenance of streetlights.

Id. at 30-31. He alleges the agreement is silent with respect to MEM’s

obligations regarding the funds after they had been tendered by the

municipality. Id. at 31. With respect to the failure to actually acquire the

lights, McLaine argues that no conversion took place as a result of PPL’s

actions. Id. at 32. Lastly, he states that although he was a member of

MEM, he had virtually no involvement in the Bethlehem Township project.

As to the third element, McLaine asserts the Commonwealth did not

establish McLaine “intentionally dealt with the property obtained as his own.”

Id. He states the Commonwealth presented no evidence that he had the

intent to handle the funds tendered to MEM by Bethlehem Township as his

own property and, assuming arguendo it was true, the funds became MEM’s

property at the time they were passed from the municipality to MEM. Id.

He also avers that, as to the dealing with money improperly, the

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Commonwealth only demonstrated MEM paid PPL the township’s money to

cover its debts. Id. at 33. McLaine proclaims he did not personally deal

with that money or act as though it was his own. Id.

The trial court initially addressed the sufficiency of the evidence claim

when it determined prior to trial that the Commonwealth presented a prima

facie case of theft, opining:

At the outset, we note that there is significant overlap in

the case law in the application of these elements. In our view,

the relevant inquiry is whether the totality of the evidence

supports a prima facie finding of criminal intent to defraud. See,

e.g., Commonwealth v. Lagana, 662 A.2d 1127 (Pa. Super. Ct.

1995). Accordingly, we will analyze the first two elements in

depth and then apply our conclusions in a summary fashion to

the third and fourth elements.

We begin with the Defendants’ contention that their receipt

of the commencement check does not constitute “obtaining of

property of another” pursuant to the Superior Court of

Pennsylvania’s holding in Commonwealth v. Austin, 393 A.2d 36

(Pa. Super. Ct. 1978). In Austin, the Superior Court overturned

a non-jury conviction for Theft in a case where the appellant-

contractor had accepted advance money on a construction

contract but rendered only partial performance thereunder. See

id. After a careful review of the record, the Superior Court

concluded that there was insufficient proof of criminal intent to

affirm the conviction. Id. at 41.

With respect to the first element, the court held that the

appellant’s acceptance of advance money did not constitute

“obtaining of property of another.” Id. at 38. It based this

conclusion on the following passage from Commonwealth v.

Bartello, 301 A.2d 885 (Pa. Super. Ct. 1973), wherein the

Superior Court reversed a conviction for fraudulent conversion:

… ‘in a single contract providing for certain services at

certain prices that where there is a transfer of money,

within the contract price, even in advance of the due date,

that title as well as possession passes and only a

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contractual obligation remains.’ Id. at 38 (quoting

Bartello, 301 A.2d at 887).

Based upon this authority, the Defendants contend that

title and possession to the Township’s funds passed to them

upon receipt. They conclude that they are immune from criminal

prosecution because a person cannot fraudulently convert his

own property. We disagree, because we do not read Austin (and

the related case law) as establishing such a hard and fast rule.

To the contrary, in Austin, the Superior Court reviewed a

number of factors before concluding that the appellant was not

subject to criminal liability, including: (a) his purchase of

materials for the project and continued performance for about

two months; (b) his willing provision of an accounting; (c) the

arguable necessity of his expenditures; (d) his consultation with

a lawyer before discontinuing the project; (e) his realization that

the project was a losing proposition; and ([f]) the absence of

express restrictions on the use of the advance monies. 393 A.2d

at 38-41.

Likewise, in Commonwealth v. Lagana, 662 A.2d 1127 (Pa.

Super. Ct. 1995), the Superior Court evaluated all of the

evidence before concluding that the Commonwealth established

its prima facie case. The proof of criminal intent in Lagana

consisted of: (1) the defendant’s receipt of municipal funds

subject to a known obligation to purchase an insurance policy;

(2) his failure to purchase the policy; (3) his commingling of the

municipal funds; (4) his use of some or all of the commingled

funds to finance his own business; (5) his possible

misrepresentations to various municipal employees; and (6) his

retention of the township’s money until ordered to return it. 662

A.2d at 1129-1130.

Applying this standard, we conclude that the totality of the

circumstances in this case establishes a prima facie showing of

criminal intent. For one thing, the Defendants inexplicably

delayed their initiation of formal contact with PPL until eight

months after the project’s outermost deadline. By that time,

nearly two years had passed since they wrote personal checks to

themselves for almost one million dollars from MEM’s corporate

account. During this interval, the Defendants provided little

feedback to the Township’s executives concerning their use of

the commencement check.

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In addition, the disparity between MEM’s and PPL’s project

estimates suggest that the Defendants, who had significant

experience in the field, deliberately overestimated the project to

pad their compensation and ensure that MEM’s corporate

account was flush. Further proof of their criminal intent

includes: (a) the Defendants’ failure to pay any portion of PPL’s

initiation fee; (b) their unsatisfactory response to the Township

Solicitor’s request for an accounting and certification; and (c)

their inability to recall any justification for the personal checks

during their depositions.

Finally, even if some portion of the commencement check

did pass to the Defendants under Austin, we conclude that it

would be limited to MEM’s compensation under the Agreement

plus reasonable costs, a figure considerably less than $832,460.

We turn now to the second element, the requirement that

the Defendants received the commencement check “subject to

an agreement of known legal obligation upon the recipient to

make specified payments or other disposition thereof.” Here,

the Defendants argue that the Commonwealth has misconstrued

the Agreement as a cost plus contract instead of a lump sum

contract. In addition, the Defendants argue that the Agreement

did not prohibit the commingling of funds or require that they

place the commencement check into escrow.1

1

For the purposes of this motion, we accept as true the

Defendants’ assertion that the commencement check did

not include a written notation restricting its use once

disbursed to MEM.

Our research indicates that, in a lump sum contract, the

contractor is entitled to keep the difference (if any) as profit

when he completes a project under the fixed total cost. In

contrast, in a cost-plus contract, the fee is set in advance and

the contractor is reimbursed for the actual cost of the work.

Presumably, the Defendants would enjoy unrestricted use of the

commencement check in a lump sum contract.

It is apparent to the Court, however, that the Agreement

includes at least one indicator of a cost-plus contract – a fixed

compensation provision based upon a percentage of the cost of

the work. Our research suggests that a cost-plus construction

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contract does not provide unfettered discretion over the use of

advance money. Given this uncertainty, we conclude that it

would be improper to make a potentially dispositive

determination as to whether the Agreement is a lump sum or

cost-plus contract.

Moreover, as noted above, we view the gap between the

cost estimates as rebuttable proof of the Defendants’ criminal

intent. In this regard, we observe that the Defendants’

compensation under the Agreement was directly tied to their

inflated cost estimate.

Next, we address the Defendants’ assertion that they were

not prohibited by law or contract from depositing the

commencement check into MEM’s corporate account. We agree

with this assertion, in principle. See Commonwealth v. Crafton,

367 A.2d 1092 (Pa. Super. Ct. 1976) (an agent may commingle

funds without penalty; criminal liability does not attach until the

requirement payments are not made). However, case law

establishes that the commingling of funds does give rise to

criminal charges when the actor has exhausted the money on

unrelated expenses and consequently cannot meet his payment

obligation.

For example, in Commonwealth v. Fritz, 470 A.2d 1364

(Pa. Super. Ct. 1983), the Superior Court held that the

appellants’ deliberate practice of commingling ticket sales in the

terminal’s operating account and then using the funds to pay its

operating expenses established that the appellants dealt with the

receipts as if they were their own. 470 A.2d at 1376-1368. This

evidence, in conjunction with proof of their inability to repay the

ticket proceeds upon request, was enough to uphold their

convictions. Id. at 1368-1369.

Here, the evidence establishes that the Defendants used

the commingled funds to pay themselves bonuses far in excess

of their compensation under the Agreement. The Defendants

cannot plausibly argue that these expenditures were necessary

for MEM’s continued operation or the project’s completion.

Moreover, the payments depleted MEM’s corporate account to a

level below even PPL’s minimal cost estimate.

We acknowledge that, without more, such evidence would

be insufficient to charge the Defendants with Theft – criminal

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liability does not attach until the required payments are not

made. However, we disagree with the Defendants’ assertion

that all preconditions to transfer had to be in place for criminal

liability to attach. Instead, we hold that MEM became subject to

criminal prosecution when it failed to provide a satisfactory

response to the Township’s February 2010 request for

certification that it had enough money to complete the project.

Fritz, 470 A.2d at 1366 (citing Crafton, 367 A.2d at 1094-1095).

We turn now to the third element, the requirement that

the Defendants intentionally dealt with the Township’s property

as their own. As noted above, in Commonwealth v. Fritz, the

Superior Court held that the terminal owners’ use of commingled

proceeds to pay operating expenses and companies other than

those to whom the proceeds should have gone established that

they had dealt with the property of another as their own. 470

A.2d at 1366-1367.

Pursuant to Fritz, we find the evidence that the Defendants

commingled the Township’s money and then used it to pay

themselves bonuses establishes that they intentionally dealt with

the Township’s property as their own.

With respect to the fourth and final element, we hold that

the Defendants’ failure to dispose of the Township’s funds as

required is established by: (1) their deposit of the

commencement check into MEM’s corporate account; (2) their

use of this account to pay themselves bonuses; (3) their failure

to initiate timely contact with PPL; (4) their minimal feedback to

the Township’s executives; (5) their failure to pay PPL’s initiation

fee; (6) their inability to certify that MEM had sufficient funds to

complete the transfer; and (7) their failure to complete the

transfer.

Order, 10/15/2012, at 6-12 (some footnotes omitted). Further, in its Rule

1925(a) opinion, the court opined:

Our subsequent review of the [Pennsylvania] Supreme Court’s

decision [in] Commonwealth v. Turrell[, 584 A.2d 882 (Pa.

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1990)9] further bolsters our conclusion. We submit that

McLaine’s position with respect to the purported escrow

requirement for Theft is unsupported by Pennsylvania law.

…

[McLaine] asserts that the evidence establishes that Kearns was

the only guilty party; that MEM made a partial disposition of the

funds; and that he was “merely a shareholder” in MEM.

With respect to the evidence of McLaine’s guilt, we note

that it is undisputed that both Defendants signed the October 1,

2007 checks. McLaine received a disproportionate share of this

disbursement, including one check for approximately $500,000.

He also participated in the MEM business meeting where the

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9

In Turrell, the defendant, an attorney, was charged with three counts of

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

stemmed from the defendant’s use of escrow account funds for his own use

and using other client’s escrow funds to make disbursements. The trial

court dismissed the charges, and a panel of this Court affirmed its decision.

The Commonwealth appealed, and the Pennsylvania Supreme Court

reversed in part, remanding as to two of the charges, but affirming as to the

third charge. With respect to that third charge, the Supreme Court found

there was a breach of the defendant’s professional responsibilities, but no

violation of the criminal statute. Specifically, the Court held:

[The] commingling of funds, although ethically reprehensible,

does not in and of itself constitute a criminal violation of §

3927(a) of the Crimes Code. Instead, a criminal violation occurs

when an attorney evinces an intent not to make the required

payment or disposition. Until such time as payment is due, an

attorney cannot be considered in violation of § 3927(a),

although he very well may have violated the Rules of

Professional Conduct. However, assuming all the other elements

have been satisfied, once payment is required and an attorney

fails to make such payment, then a violation of § 3927(a) has

occurred.

Turrell, 584 A.2d at 886. The Court determined that with respect to the

facts of the third charge, there was no present obligation to disburse the

funds held.

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checks were discussed and ratified. Unlike Kearn[s], McLaine did

not leave MEM until September or October of 2011.

With respect to partial performance, we acknowledge that

MEM did present some evidence to this effect, for example, the

$50,000 payment to Precision Electric. However, there is no

evidence that MEM used Bethlehem Township’s funds during this

transaction. The jury could have concluded that MEM was simply

“robbing from Peter to pay Paul.”

With respect to McLaine’s assertion that he was only a

“shareholder” in MEM, we note that the company just had two

shareholders at the time. McLaine also received nearly $1

million in compensation from MEM in 2007. In addition, he was

an active participant in MEM’s business meetings and held the

titles of Secretary and Treasurer.

Trial Court Opinion, 6/2/2014, at 35-37 (footnotes omitted). Our review of

record reveals the exact same evidence was presented at trial and was

sufficient for the jury to find beyond a reasonable doubt that McLaine

committed the crime of theft. As such, we agree with the trial court’s

thorough analysis. Accordingly, we affirm on this basis. Therefore, McLaine’s

first argument fails.

Next, McLaine argues the verdict was against the weight of the

evidence.10 See McLaine’s Brief at 35. He concisely states:

The argument that the verdict was against the weight of

the evidence closely follows that presented above in the

sufficiency argument. Therefore, [McLaine] refers the Court to

that analysis. Even if the Court were to find [] sufficient

evidence, the verdict was against the weight of the evidence for

reasons discussed above, specifically the uncontroverted

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10

McLaine properly preserved his challenge to the weight of the evidence by

raising it in a post-sentence motion. See Pa.R.Crim.P. 607(A).

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evidence of partial performance, the fact that Kearns, rather

than [McLaine] was a party to all relevant transactions, and the

fact that the specific funds of the Municipality cannot be traced

to [McLaine]’s specific possession. Therefore, this Court should

remand the case for a new trial.

Id. at 35.

Appellate review of a weight of the evidence claim is well-established:

A weight of the evidence claim concedes that the evidence is

sufficient to sustain the verdict, but seeks a new trial on the

ground that the evidence was so one-sided or so weighted in

favor of acquittal that a guilty verdict shocks one’s sense of

justice. Commonwealth v. Widmer, 560 Pa. 308, 318–20,

744 A.2d 745, 751–52 (2000); Commonwealth v. Champney,

574 Pa. 435, 443–44, 832 A.2d 403, 408–09 (2003). On review,

an appellate court does not substitute its judgment for the finder

of fact and consider the underlying question of whether the

verdict is against the weight of the evidence, but, rather,

determines only whether the trial court abused its discretion in

making its determination. Widmer, 560 Pa. at 321–22, 744

A.2d at 753; Champney, 574 Pa. at 444, 832 A.2d at 408.

Commonwealth v. Lyons, 79 A.3d 1053, 1067 (Pa. 2013), cert. denied,

134 S.Ct. 1792 (U.S. 2014).

Although the court noted McLaine did raise the weight issue in his

concise statement, it did not address the weight in its analysis of McLaine’s

arguments but did address the issue with regard to Kearns, stating: “After a

thorough review of the record, we are convinced that the question of

criminal liability was for the jury. We only substitute our judgment for that

of the jury in the most egregious cases. This case falls below that

standard.” Trial Court Opinion, 6/2/2014, at 40.

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We agree with the court’s rationale. Pursuant to the standard, and in

conformity with our sufficiency analysis, the evidence in the present matter

was not ”so one-sided or so weighted in favor of acquittal that a guilty

verdict shocks one’s sense of justice.” Lyons, 79 A.3d at 1067. As our

Supreme Court has made clear, we may not reweigh the evidence and

substitute our judgment for the trial court’s decision. See Lyons, supra.

Therefore, McLaine’s weight claim fails.

With respect to McLaine’s third argument, he asserts the trial court

erred in admitting evidence of MEM’s business dealings in other townships as

prior bad acts because (1) those acts were not convictions, (2) they were

not substantially related to the case at hand, and (3) they did not fall under

an exception to the prohibition against the admission of prior bad acts.

McLaine’s Brief at 36. McLaine notes evidence of uncharged crimes and prior

bad acts is not admissible at trial to demonstrate a defendant’s propensity to

commit the crime charged unless an exception to the rule applies. Id. He

states the Commonwealth sought admission of the evidence, claiming the

acts constitute an exception to the rule because they fall under a common

scheme, plan, or design. Id. McLaine argues the exception does not apply

to the facts of his case where: (1) there was no unity of location since the

acts took place in different municipalities; (2) there was no unity of time

because there were years separating all of the actions at issue; and (3)

there was no modus operandi because each case involved different contracts

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and different breaches following the formation of the contracts. Id. at 40.

Moreover, he contends the Commonwealth stretches “the common plan,

scheme, or design exception to its logical limits in an attempt to prove action

in conformity with prior bad acts and to prove that [he] is a person of

unsavory character.” Id. Lastly, McLaine complains that the probative

value of the evidence did not outweigh the prejudice as the introduction of

this testimony “wrongfully blackened” his character in the mind of the jury.

Id. at 42.

With respect to an admissibility of evidence claim, our standard of

review is as follows:

Admission of evidence is within the sound discretion of the trial

court and will be reversed only upon a showing that the trial

court clearly abused its discretion. Admissibility depends on

relevance and probative value. Evidence is relevant if it logically

tends to establish a material fact in the case, tends to make a

fact at issue more or less probable or supports a reasonable

inference or presumption regarding a material fact.

Judicial discretion requires action in conformity with law, upon

facts and circumstances judicially before the court, after hearing

and due consideration. An abuse of discretion is not merely an

error of judgment, but if in reaching a conclusion the law is

overridden or misapplied or the judgment exercised is manifestly

unreasonable, or the result of partiality, prejudice, bias, or ill

will, as shown by the evidence or the record, discretion is

abused.

Commonwealth v. Borovichka, 18 A.3d 1242, 1253 (Pa. Super. 2011)

(citation omitted).

The admission of evidence of prior bad acts or crimes is governed by

Pennsylvania Rule of Evidence 404(b), which provides, in relevant part:

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(b) Crimes, Wrongs or Other Acts.

(1) Prohibited Uses. Evidence of a crime, wrong, or other act is

not admissible to prove a person's character in order to show

that on a particular occasion the person acted in accordance with

the character.

(2) Permitted Uses. This evidence may be admissible for another

purpose, such as proving motive, opportunity, intent,

preparation, plan, knowledge, identity, absence of mistake, or

lack of accident. In a criminal case this evidence is admissible

only if the probative value of the evidence outweighs its potential

for unfair prejudice.

Pa.R.E. 404(b)(1-2). “Evidence is relevant if it logically tends to establish a

material fact in the case, tends to make a fact at issue more or less

probable, or supports a reasonable inference or presumption regarding the

existence of a material fact.” Commonwealth v. Minerd, 753 A.2d 225,

230 (Pa. 2000) (citations omitted). Evidence is prejudicial only when it is

“so prejudicial that it may inflame the jury to make a decision based upon

something other than the legal propositions relevant to the case.”

Commonwealth v. Colon, 846 A.2d 747, 753 (Pa. Super. 2004), (citation

omitted), appeal denied, 870 A.2d 320 (Pa. 2005).

The court summarized the trial testimony at issue as follows:

8. Michael Corriere

Attorney Michael Corriere has been the solicitor for the

Borough of Walnutport since 2002.

On July 30, 2009, Walnutport entered into a contract with

MEM. The estimated cost was $192,000, with MEM to receive a

5% commission. Walnutport paid a commencement fee of

$107,620. Corriere understood that the project would be

complete by 2010, but that did not occur.

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Nothing happened until October 2011. At that time,

Borough Council authorized a second payment to MEM. Kearns

assured Corriere that the deal was close to a conclusion and that

the Borough would receive a rebate.

Nothing happened after the second payment. In January

of 2012, Borough Council asked Corriere to contact Kearns for a

status report. Kearns did not respond.

Corriere then contacted PPL and spoke with [Damon]

Obie[, senior counsel for PPL]. Borough Council authorized him

to determine whether it could complete the conversion without

MEM. PPL provided a “ballpark estimate” of $53,000. To date,

Walnutport does not own its streetlights.

MEM did not refund the commencement payments. It did

reimburse Walnutport $7,500.

On cross-examination, Corriere conceded that he

contacted PPL after learning that [the Commonwealth] had filed

criminal charges against MEM. He acknowledged receipt of the

July 13, 2010 memo.[11] Corriere never dealt with McLaine.

8. Steven Seacrest

Steven Seacrest has been the Richland Township Manager

for 12 years. He oversees its day-to-day operations. On March

12, 2009, Richland Township entered into a contract with MEM.

MEM provided a cost estimate of $281,000 and received a 5%

commission.

Richland Township made commencement payments of

$165,000. It borrowed money for the project, which was never

completed.

____________________________________________

11

The July 13, 2010, memo was a document MEM provided to several

municipalities, informing them that MEM had encountered problems with PPL

and PPL’s refusal to treat the new municipalities the way they treated the 11

successful prior transactions. See N.T., 1/9/2013, 98-99.

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PPL informed Richland Township that MEM had not

contacted PPL on its behalf. Richland Township had several

meetings with Kearns, who invariably stated that MEM was

having problems with PPL but moving the project forward.

To date, Richland Township does not own its streetlights.

MEM did not refund the commencement fee.

On cross-examination, Seacrest conceded that MEM set up

an online system for reporting lighting outages and trained

Richland Township staff in its use. In addition, PPL did not offer

to reduce Richland Township’s tariff to the municipal-owned rate.

9. Sandra Gyecsek

Sandra Gyecsek is the Secretary and Treasurer for the

Borough of Coplay. She handles its day-to-day operations,

including accounts payable, accounts receivable, and payroll.

Gyecsek has been with the Borough for 15 years.

In 2009, Coplay entered into an agreement with MEM. The

total estimated cost was $291,700. MEM received a 5%

commission of $14,585.

In June of 2009, Coplay paid MEM $160,182. It borrowed

money for the project. Afterward, nothing happened.

In July of 2010, PPL informed Gyecsek that it had no

record of MEM representing Coplay. Coplay then contacted PPL

to determine if it could complete the project without MEM. In

April of 2012, PPL provided a “ballpark estimate” of $83,120.

MEM did not transfer any money to PPL on Coplay’s behalf

or return the commencement fee. To date, Coplay does not own

its streetlights. Gyecsek mainly dealt with Kearns and never met

McLaine.

On cross-examination, Gyecsek acknowledged that

Coplay’s solicitor, Broughal & DeVito, had reviewed the contract

before the Borough signed it. She conceded that she could not

gauge the accuracy of PPL’s “ballpark estimate.”

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Gyecsek confirmed that the Borough received the July 13,

2010 memo. PPL did not inform Coplay that it could only

process one application at a time.

Trial Court Opinion, 6/2/2014, at 18-20.12

On January 7, 2013, the court entered an order, permitting admission

of the proposed testimony, explaining that the Commonwealth’s use of the

Defendants’ dealings with Coplay Borough, Richland Township, and

Walnutport Borough was admissible to prove the Defendants’ common

scheme or plan. See Order, 1/7/2013, at 3. The court’s order also

permitted the Defendants to raise specific objections to the Commonwealth’s

Rule 404(b) evidence at trial. Subsequently, in its Rule 1925(a) opinion, the

court also stated: “We further submit the [Rule] 404(b) evidence introduced

at trial was proper because it tended to establish the Defendants’ modus

operandi of commingling funds, failing to deliver promised services, making

repeated empty assurances, withdrawing from communication, and refusing

to pay refunds.” Trial Court Opinion, 6/2/2014, at 37.

In considering whether evidence is admissible under the common plan

exception, we are guided by the following:

When ruling upon the admissibility of evidence under the

common plan exception, the trial court must first examine

the details and surrounding circumstances of each criminal

incident to assure that the evidence reveals criminal

conduct which is distinctive and so nearly identical as to

____________________________________________

12

This evidence and issue was also discussed extensively prior to trial at

the January 4, 2013, pre-trial hearing. See N.T., 1/4/2013, at 80-94.

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become the signature of the same perpetrator. Relevant

to such a finding will be the habits or patterns of action or

conduct undertaken by the perpetrator to commit crime,

as well as the time, place, and types of victims typically

chosen by the perpetrator. Given this initial

determination, the court is bound to engage in a careful

balancing test to assure that the common plan evidence is

not too remote in time to be probative. If the evidence

reveals that the details of each criminal incident are nearly

identical, the fact that the incidents are separated by a

lapse of time will not likely prevent the offer of the

evidence unless the time lapse is excessive. Finally, the

trial court must assure that the probative value of the

evidence is not outweighed by its potential prejudicial

impact upon the trier of fact. To do so, the court must

balance the potential prejudicial impact of the evidence

with such factors as the degree of similarity established

between the incidents of criminal conduct, the

Commonwealth’s need to present evidence under the

common plan exception, and the ability of the trial court to

caution the jury concerning the proper use of such

evidence by them in their deliberations.

Commonwealth v. G.D.M., Sr., 2007 PA Super 169, 926 A.2d

984, 987 (Pa. Super. 2007), appeal denied, 596 Pa. 715, 944

A.2d 756 (2008) (quoting Commonwealth v. Smith, 431 Pa.

Super. 91, 635 A.2d 1086, 1089 (Pa. Super. 1993)).

Although “remoteness in time is a factor to be considered in

determining the probative value of other crimes evidence under

the theory of common scheme, plan or design, the importance of

the time period is inversely proportional to the similarity of the

crimes in question.” Commonwealth v. Aikens, 2010 PA

Super 29, 990 A.2d 1181, 1185 (Pa. Super. 2010), appeal

denied, 607 Pa. 694, 4 A.3d 157 (2010) (holding evidence of

defendant’s prior sexual assault was admissible under common

scheme exception despite nearly ten-year gap between periods

of abuse, where victims were of similar age and both were

daughters of defendant; defendant initiated contact with each

victim during overnight visit in his apartment; defendant began

sexual abuse by showing victims pornographic movies; and

assaults occurred in bed at night).

Commonwealth v. Tyson, 119 A.3d 353, 358-359 (Pa. Super. 2015).

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Initially, we note defense counsel did not raise specific objections at

trial to the admissibility of this evidence. Second, contrary to McLaine’s

suggestion that there were distinct differences in the prior bad acts with

regard to this case, the record reveals the following factual similarities

between the present case and the defendants’ prior acts: (1) McLaine and

Kearns entered into written contracts with municipalities for the transfer of

streets lights from PPL to the municipalities; (2) the contracts contained

substantially similar language, including MEM’s performance in obtaining

ownership of the street lights; (3) the contracts required the municipalities

to make payments upfront to McLaine and Kearns for performance and the

defendants would receive a 5% commission fee; (4) McLaine and Kearns

either delayed or never contacted PPL to begin the streetlight process; (5)

McLaine’s and Kearns’s proposed costs of transferring the lights to the

municipalities substantially exceeded the actual amounts estimated by PPL;

and (6) McLaine and Kearns failed to perform their obligation under the

contracts. Therefore, despite McLaine’s argument, we conclude that the trial

court did not abuse its discretion in determining that the evidence of the

prior bad acts satisfied the requirements of the common scheme, plan, or

design exception, and the probative value of the evidence outweighed any

prejudicial effect. Accordingly, this issue fails.

Next, McLaine asserts the trial court erred in quashing his subpoena

for PPL records because they were relevant and necessary to the

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presentation of a defense in his case. See McLaine’s Brief at 44. By way of

background, shortly before trial, on December 28, 2012, McLaine served a

subpoena on PPL requesting records of its dealings with MEM, and the

municipalities that were involved with MEM and PPL, regarding streetlight

transactions. See N.T., 1/4/2013, at 104. Argument was heard regarding

the subpoena on January 4, 2013. Counsel for PPL presented a motion to

quash the subpoena, asserting the request “to produce involves

approximately twenty-eight municipalities spanning from the years 2002 up

until 2009” was “overly burdensome.” Id. at 105. The court granted PPL’s

motion to quash the subpoena on January 7, 2013. See Order, 1/7/2013.

McLaine now argues: (1) this information was not available from

another source; (2) PPL was the only other party to the transaction, other

than MEM and the municipalities, and they had files that the other parties

did not; and (3) the files were relevant and necessary to the defense

because the entire defense focused on the actions taken by PPL, which

frustrated the purposes of the contract and rendered MEM unable to

perform. Id. at 44-45.

Generally, “the standard of review regarding a motion to quash a

subpoena is whether the trial court abused its discretion.” Leber v.

Stretton, 928 A.2d 262, 266 (Pa. Super. 2007), appeal denied, 945 A.2d

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172 (Pa. 2008).13 In its Rule 1925(a) opinion, the court concisely noted it

did not abuse its discretion in sustaining this motion because “PPL could not

possibly produce this information on the eve of trial.” Trial Court Opinion,

6/2/2014, at 37.

We agree with the trial court’s finding. McLaine waited until ten days

before trial to serve the subpoena and requested seven years of records for

numerous municipalities. Moreover, as counsel for PPL suggests, some of

the information requested was not relevant to the criminal matter at hand,

there were many departments involved in the streetlight system that would

have needed to be notified, and there was concern over attorney/client

privilege. See N.T., 1/4/2013, at 106, 113. Likewise, PPL counsel points

out McLaine received substantial discovery from the Commonwealth prior to

trial that assisted in the presentation of his defense. Id. at 114.

Accordingly, we agree the trial court did not abuse its discretion in granting

the belated motion and McLaine’s claim is without merit.

In McLaine’s fourth argument, he alleges the court erred in failing to

grant a mistrial during the Commonwealth’s closing argument when the

district attorney made malicious and improper statements regarding

McLaine. See McLaine’s Brief at 45. McLaine states these comments were

____________________________________________

13

See also Commonwealth v. Niemetz, 422 A.2d 1369, 1373 (Pa.

Super. 1980) (“The decision to grant or deny a motion to quash is within the

sound discretion of the trial judge and will be reversed on appeal only where

there has been a clear abuse of discretion.”).

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inappropriate and served no purpose other than to inflame the jury against

him. McLaine’s Brief at 46.

McLaine points to the following statements:

1. In referring to the defendants’ actions, “It’s li[ke] a Ponzi

Scheme.”

2. “This statute which is passed by our legislature is to protect

people who entrust money to other people for specific

purposes. If you guys think this is a bad law, you could find

them not guilty and say, you know, I don’t think this is a

good law.

So next time you give $20,000 to the real estate agent

to buy a house, and he says, I’m sorry, I can’t get this house

for you, he gets to keep[] it. Doesn’t have to give it back.

Oh, sue me. I’m bankrupt. Good luck.”

3. “These guys are crooks in suits, ladies and gentlemen, in

suits; not wearing a bandana over their face, suits and pencils

and papers and computers and lawyers and accountants and

lawyers.”

N.T., 1/10/2013, at 203, 213-214, 218.

We are guided by the following:

We review the trial court’s decision to deny a mistrial for an

abuse of discretion. A mistrial is necessary only when the

incident upon which the motion is based is of such a nature that

its unavoidable effect is to deprive the defendant of a fair trial by

preventing the jury from weighing and rendering a true verdict.

A mistrial is inappropriate where cautionary instructions are

sufficient to overcome any potential prejudice.

Commonwealth v. Bedford, 50 A.3d 707, 712-713 (Pa. Super. 2012)

(citations and internal quotation marks omitted), appeal denied, 57 A.3d 65

(Pa. 2012).

Moreover,

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[t]he legal principles relevant to a claim of prosecutorial

misconduct are well established.

Comments by a prosecutor constitute reversible

error only where their unavoidable effect is to

prejudice the jury, forming in [the jurors’] minds a

fixed bias and hostility toward the defendant such

that they could not weigh the evidence objectively

and render a fair verdict.

Commonwealth v. Hutchinson, 611 Pa. 280, 25 A.3d 277,

307 (Pa. 2011) (citation omitted).

While it is improper for a prosecutor to offer any personal

opinion as to the guilt of the defendant or the credibility of the

witnesses, it is entirely proper for the prosecutor to summarize

the evidence presented, to offer reasonable deductions and

inferences from the evidence, and to argue that the evidence

establishes the defendant’s guilt. Id. at 306-07; Chamberlain,

supra at 408. In addition, the prosecutor must be allowed to

respond to defense counsel’s arguments, and any challenged

statement must be viewed not in isolation, but in the context in

which it was offered. Hutchinson, supra at 307. “[The]

prosecutor must be free to present his or her arguments with

logical force and vigor,” and comments representing mere

oratorical flair are not objectionable. Id. at 306-07 (citation

omitted).

Commonwealth v. Thomas, 54 A.3d 332, 337-338 (Pa. 2012), cert.

denied, 134 S. Ct. 173 (U.S. 2013).

Here, the record reveals the following. At the end of the prosecutor’s

closing argument, counsel for McLaine objected to the statements at issue.

N.T., 1/10/2013, at 223. In response to the first statement regarding the

“Ponzi scheme,” the court imparted a cautionary instruction to the jury.

N.T., 1/11/2013, at 3, 8. Specifically, the court stated:

[T]here was a reference to the overall behavior of the

Defendant as constituting a Ponzi Scheme. You’ve heard that

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reference there. That is sort of a buzz word, but this case does

not involve a Ponzi Scheme. That term is used to describe a

fraudulent investment scheme where later investors generated

artificially high dividends and higher dividends than the other

investors.

So the District Attorney used that term in a slang context,

but I don’t want you to gravitate to the belief that this behavior

is alleged in any way to be a Ponzi Scheme.

Id. at 8.

With respect to the second statement regarding the prosecutor’s

personal opinion, the court did not find “any support that he interjected his

personal opinion in an improper way in his closing.” Id. at 3. Lastly, with

regard to the “crooks in suits” comment, the court determined it be a

“slang,” noting, “These Defendants are charged with thefts, and he’s made it

quite clear, the prosecution has made it clear, these are thefts. And he went

to some length to define the various types of thefts in this matter … So I

intend to tell the jury that the use of slang is -- it's not improperly

inflammatory[.]” Id. at 4.

We are inclined to agree with the court’s determinations. With respect

to the cautionary instruction, the “law presumes that the jury will follow the

instructions of the court.” Commonwealth v. Miller, 819 A.2d 504, 513

(Pa. 2002), cert. denied, 540 U.S. 827 (2003). Moreover, the

“Commonwealth is entitled to comment during closing arguments on matters

that might otherwise be objectionable or even outright misconduct, where

such comments constitute fair response to matters raised by the defense, or

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where they are merely responsive to actual evidence admitted during a

trial.” Commonwealth v. Culver, 51 A.3d 866, 876 (Pa. Super. 2012).

Viewing the prosecutor’s comments in context, they were in response to

matters raised by the defense as to whether the defendants actually

committed a theft. Therefore, we conclude the prosecutor’s remarks during

closing arguments did not so prejudice the jury that they could not weigh

the evidence objectively. Accordingly, we find the court did not abuse its

discretion in denying McLaine’s motion for a mistrial, and his fourth

argument fails. See Hutchinson, 25 A.3d at 307.

In his penultimate issue, McLaine argues the trial court failed to

suppress his July 26, 2011, civil deposition testimony because the Solicitor

of Bethlehem Township, John Harrison, who conducted the deposition, was

acting in concert with the prosecuting attorney and no Miranda warnings

were provided. McLaine’s Brief at 47. McLaine notes that pursuant to the

Fifth Amendment of the United States Constitution, no person “shall be

compelled in any criminal case to be a witness against himself,” 14 and that

this privilege applies at all stages of a criminal proceeding. Id. He states he

“was compelled to make statements at a civil deposition at a time when

criminal prosecution was contemplated by the District Attorney and the

Solicitor deposing [McLaine] and when [McLaine] had no idea that such

____________________________________________

14

U.S. CONST. AMEND. V.

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prosecution was pending.” Id. Moreover, he alleges he “was not warned of

his right against self-incrimination; therefore, his statements should have

been suppressed.” Id.

When reviewing an order denying a pre-trial motion to suppress

evidence, we are guided by the following:

We are limited to determining whether the factual findings are

supported by the record and whether the legal conclusions

drawn from those facts are correct. We may consider the

evidence of the witnesses offered by the prosecution, as verdict

winner, and only so much of the defense evidence that remains

uncontradicted as a whole. We are bound by facts supported by

the record and may reverse only if the legal conclusions reached

by the court below were erroneous.

Borovichka, 18 A.3d at 1248-1249. Additionally,

[a]ssuming that there is support in the record for the

suppression court’s factual findings -- and there is no dispute

here on the governing facts -- we are bound by those facts and

we may reverse only if the legal conclusions drawn from those

facts are in error. If there is sufficient evidence of record to

support the suppression court’s ruling and the court has not

misapplied the law, we will not substitute our credibility

determinations for those of the suppression court judge.

However, if the court has misapplied the law, we must reverse

that court’s determination.

Commonwealth v. Johnson, 86 A.3d 182, 187 (Pa. 2014) (citations

omitted).

Turing to one’s right against self-incrimination, we are guided by the

following:

The Fifth Amendment provides “no person ... shall be compelled

in any criminal case to be a witness against himself[.]” U.S.

Const. amend. V. This prohibition not only permits an individual

to refuse to testify against himself when he is a defendant but

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also “‘privileges him not to answer official questions put to him

in any other proceeding, civil or criminal, formal or informal,

where the answers might incriminate him in future criminal

proceedings.’” [Minnesota v. Murphy, 465 U.S. 420, 426

(1984)] (quoting Lefkowitz v. Turley, 414 U.S. 70, 77, 94 S.

Ct. 316, 38 L. Ed. 2d 274 (1973)). The Fifth Amendment

privilege against self-incrimination is generally not self-

executing, and ordinarily an individual must assert the privilege

for subsequent statements to be considered “compelled” within

the meaning of the Fifth Amendment. Murphy, at 427;

[Commonwealth v. Knoble, 42 A.3d 976, 979 (Pa. 2012)].

However, the Fifth Amendment is self-executing where an

individual is subject to custodial interrogation without being

given Miranda warnings. Murphy, at 429-30; Miranda, at

467-69.

Commonwealth v. Cooley, 118 A.3d 370, 375-376 (Pa. 2015) (footnotes

omitted).

By way of background, on December 19, 2012, McLaine filed a motion

to suppress, stating: “On July 26, 2011, [McLaine] was deposed on a purely

civil matter by Bethlehem Township Solicitor John Harrison in the matter of

Bethlehem Township v. Municipal Energy Managers, docketed at 10 CV

4171.” McLaine’s Supplemental Omnibus Pretrial Motion, 12/19/2012, at 1.

Furthermore, he alleged that prior to this deposition, Harrison met with the

District Attorney in the present matter and McLaine believed “that at this

meeting, [the prosecutor] and Harrison discussed the civil case against

Municipal Energy Managers as it related to a contemplated criminal

prosecution against [McLaine].” Id. at 2. Additionally, he averred that after

he was deposed and made inculpatory statements, those transcripts were

provided to the prosecutor for use in the present criminal matter. Id. at 2.

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At the January 4, 2013, pretrial hearing, the prosecutor responded to

McLaine’s argument, stating:

Your Honor, Exhibit 2 is a letter dated June 2nd, 2011.

And the letter is from the lawyer Patrick Casey. In this case the

defendant is alleging that -- the defendant is alleging that at the

time he went for depositions in July of 2011, as he says here,

that he was not informed of the contemplated criminal

prosecution. That’s absolutely untrue.

It’s untrue because well before July of 2011, when these

depositions were taken, I personally had spoken to their civil

trial lawyer from MEM, Mr. Shoemaker. Mr. Shoemaker advised

me that he was not a criminal lawyer. I told Mr. Shoemaker that

we were looking into this matter. This is back in March of 2011,

months before this deposition in July.

I told him that we were preliminarily looking into the

matter. And I wanted to talk to Mr. Shoemaker, who was the

counsel of record in the civil case. Mr. Shoemaker advised I do

not do criminal work, but I’ll have two lawyers get in touch with

you.

…

So what happened, Judge, is after the initial contact was made

by my office to Attorney Shoemaker, who is a civil lawyer for

MEM, he referred us to Mr. Cognetti and Mr. Casey.

As you can see from the letter he alluded to, thank you for

giving us your time on Thursday, June 2nd, to discuss the

issues. Cognetti representing -- Sal Cognetti representing Mr.

McLaine and Mr. Casey representing Mr. Kearns, as set forth in

this letter, met with me and we were informed they were -- and

they were informed that our office was looking into this case.

So for them to claim in this petition there was no evidence

of any contemplated criminal matter pending, when they went in

July, I would point out that Sal Cognetti was the lawyer who sat

with his client at the deposition. Mr. Cognetti, who met with me

and knew that the District Attorney was looking into this matter,

he is the lawyer at the deposition sitting next to his client giving

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the deposition. He knew in July of 2011. He met with me, here’s

the letter.

Mr. Casey acknowledged that he had met with me already.

N.T., 1/4/2013, at 27-29.

Furthermore, at the pre-trial hearing, McLaine admitted on cross-

examination that: (1) his previous attorney, Shoemaker, had told him that

the prosecutor had been in contact with the attorney; (2) he had discussion

with his other prior counsel, Cognetti, regarding the matter; and (3) when

he was deposed in July of 2011, he was aware the District Attorney’s Office

was investigating the matter. Id. at 60-61. Nevertheless, McLaine testified

he was not under the impression that criminal charges would be forthcoming

but “that if we could solve the problem, in other words convert Bethlehem

Township, there would be no filings.” Id. at 62-63.

Based on the evidence, the court found the following:

The Defendants’ Motion to Suppress all statements made

during their depositions in July of 2011, on the ground that

Bethlehem Township Solicitor John Harrison was acting as an

agent of the Commonwealth in conducting the depositions, is

DENIED. The Court finds insufficient evidence of bad faith on

the part of the Commonwealth to justify this extreme remedy.

See U.S. v. Rand, 308 F. Supp. 1231 (D.C. Ohio 1970).

Specifically, the Court finds that: (a) the Defendants had actual

knowledge of the Commonwealth’s potential interest in initiating

a criminal action; and (b) the Defendants failed to produce

sufficient evidence of collaboration between the District Attorney

and Attorney Harrison prior to the depositions.

Order, 1/7/2013, at 2 (emphasis in original).

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We agree with the court’s findings as the record supports its

conclusion. The prosecutor had informed McLaine’s attorney prior to the civil

deposition date that there was potential for a criminal investigation.

Moreover, McLaine, himself, admitted that he was aware of the possible

criminal matter. Additionally, as noted above, the Fifth Amendment

privilege is generally not self-executing and therefore, McLaine would have

had to invoke it. See Cooley, supra. Lastly, McLaine did not present any

evidence, besides mere allegations, that the prosecutor acted in bad faith or

collaborated with Harrison prior to the deposition.15 Accordingly, this

argument is without merit.

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15

We note McLaine relies on a federal district court case, United States v.

Guerrina, 112 F. Supp. 126 (E.D. Pa. 1953), to support his argument. In

Guerrina, the defendant was cooperating with an Internal Revenue

employee to examine files for the purpose of an audit. That employee

brought another individual, whose identity was not made known to the

defendant, but who subsequently turned out be a special agent for the

Intelligence Unit of the Internal Revenue Bureau. “The special agent was

there in connection with an investigation of the defendant for possible

criminal action for filing false and fraudulent returns, which fact was never

made known to the defendant during the course of the examination.” Id. at

128. In granting the motion to suppress, the federal district court stated:

To permit evidence to be obtained against a defendant by the

means here employed (however innocently it may have been

done in this case) would be to encourage overzealous and less

scrupulous officers and agents of law enforcement agencies to

chip away rights guaranteed by the Constitution to defendants

by trick and artifice, to do what could not be done in court

proceedings, i.e., compel a defendant to testify against himself.

(Footnote Continued Next Page)

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Lastly, McLaine contends the court imposed an illegal sentence. He

points out that the maximum penalty for theft by failure to make required

disposition of funds, a third-degree misdemeanor, is one year of

incarceration, and his sentence is six to 12 months’ plus one year of

consecutive probation. McLaine’s Brief at 21. He states “the aggregate two-

year sentence exceeds the one-year maximum prescribed by statute.” Id.

Our standard of review is as follows.

A challenge to the legality of a sentence may be raised as a

matter of right, is not subject to waiver, and may be entertained

as long as the reviewing court has jurisdiction. If no statutory

authorization exists for a particular sentence, that sentence is

illegal and subject to correction. An illegal sentence must be

vacated. We can raise and review an illegal sentence sua

sponte. When we address the legality of a sentence, our

_______________________

(Footnote Continued)

Id. at 130. We find Guerrina distinguishable from the present matter

because, as stated above, McLaine was aware prior to the deposition

about the prosecutor’s investigation and he did not establish the prosecutor

acted in collaboration with Harrison in conducting the civil deposition.

Moreover, McLaine’s reliance on United States v. Rand, 308 F. Supp.

1231 (N.D. Ohio 1970), is misplaced. In Rand, the defendants’ indictment

followed a civil action brought by the Food and Drug Administration (FDA)

against them. One of the defendants, the president of the company,

asserted his Fifth Amendment right against self-incrimination was violated

because he cooperated with the government’s initial investigation and

subsequently took the stand in his defense based upon the promise of

immunity. The court determined that while the FDA proceeding was not for

the purpose of evidence-gathering, the government was improperly engaged

in using a parallel proceeding for criminal prosecution. The court found

suppression was the appropriate relief because the United States attorney

and the civil court allegedly told defense counsel that no criminal prosecution

would ensue, and defendants were entitled to rely upon that promise. See

Rand, supra. Here, McLaine received no promise of immunity.

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standard of review is plenary and is limited to determining

whether the trial court erred as a matter of law.

Borovichka, 18 A.3d at 1254 n.8 (internal citations and quotation marks

omitted).

As noted above, McLaine’s theft crime was originally graded as a third-

degree felony but on June 4, 2013, the court re-sentenced McLaine, grading

it as a third-degree misdemeanor, and ordered him to serve a term of six to

12 months’ incarceration, plus 60 months of probation. Subsequently, on

July 31, 2013, the trial court entered an order, modifying the sentence to a

consecutive period of probation of 12 months rather than 60 months. The

remainder of the sentence was not changed.16

“A crime is a misdemeanor of the third degree if it is so designated in

this title or if a person convicted thereof may be sentenced to a term of

imprisonment, the maximum of which is not more than one year.” 18

Pa.C.S. § 106(b)(8). Here, McLaine’s 12-month probationary period

exceeded the one-year limit. See Commonwealth v. Lee, 947 A.2d 199

(Pa. Super. 2008) (finding the length of the four-year sentence was illegal,

in that, although the offense was graded as a first degree misdemeanor, 18

Pa.C.S. § 5511(a)(2.1)(ii) provided for a maximum term of imprisonment of

____________________________________________

16

We note this panel affirmed the grading of McLaine’s offense as a third-

degree misdemeanor in the disposition of the Commonwealth’s appeal at

Docket No. 1685 EDA 2013.

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two years), appeal denied, 981 A.2d 218 (Pa. 2009).17 Accordingly, we are

constrained to vacate the judgment of sentence and remand this matter for

re-sentencing as to the length of the probationary period.

Judgment of sentence vacated. Case remanded for resentencing.

Jurisdiction relinquished.

Judgment Entered.

Joseph D. Seletyn, Esq.

Prothonotary

Date: 11/13/2015

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17

The trial court deferred to this Court on the issue. See Trial Court

Opinion, 6/2/2014, at 34.

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