Commonwealth v. Pi Delta Psi, Inc.

J-A04023-19

2019 PA Super 167

COMMONWEALTH OF PENNSYLVANIA : IN THE SUPERIOR COURT OF

: PENNSYLVANIA

:

v. :

:

:

PI DELTA PSI, INC., :

:

Appellant. : No. 458 EDA 2018

Appeal from the Judgment of Sentence, January 8, 2018,

in the Court of Common Pleas of Monroe County,

Criminal Division at No(s): CP-45-CR-0002578-2015.

BEFORE: LAZARUS, J., KUNSELMAN, J., and COLINS, J.*

OPINION BY KUNSELMAN, J.: FILED MAY 23, 2019

I. Introduction

Near the close of the 2013 fall semester, student members of Pi Delta

Psi, Inc. traveled from their college campus in Manhattan to the Pocono

Mountains. They rented a house to perform the final rites and rituals of their

new-member program, as they had quietly done in previous semesters. This

time, something went horribly wrong.

A ritual known as “The Crossing,” a gauntlet where members tackle and

body-slam associate members,1 killed a freshman. The Commonwealth filed

charges against the student members; certain national officers; and Pi Delta

Psi, Inc., itself. A jury convicted the corporation of hazing, involuntary

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1 A.K.A. “pledges.”

* Retired Senior Judge assigned to the Superior Court.

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manslaughter, aggravated assault, conspiracy to commit aggravated assault,

hindering apprehension, and conspiracy to hinder apprehension.2 The

corporation now appeals from its judgment of sentence, imposing an

aggregate of ten years of probation and fining it $112,500.00. It raises many

appellate issues, including new, constitutional theories regarding its Due

Process rights. As we will explain, none of its claims have merit.

However, the trial court imposed a probationary condition barring the

corporation from conducting any business in Pennsylvania for a decade. This

Court can find nothing in our statutes or at common law that affords a trial

court authority to outlaw a corporation from an entire state. We therefore

must vacate, sua sponte, that illegal sentence and remand for resentencing.

In all other respects, we affirm.

II. Factual Background

Pi Delta Psi, Inc. came into being on April 14, 1995, when its founders

incorporated it as non-profit corporation3 under New York law. They

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2 24 P.S. § 5353, 18 Pa.C.S.A. § 2504(a), 18 Pa.C.S.A. § 2702(a)(1), 18

Pa.C.S.A. § 903, 18 Pa.C.S.A. § 5105(a)(3), and 18 Pa.C.S.A. § (a)(5).

3 As the corporation is a non-profit, we pause to consider our jurisdiction.

In civil matters involving non-profit corporations, this Court, applying

42 Pa.C.S.A. § 762(a)(5), has held “jurisdiction over this appeal properly lies

with the Commonwealth Court, because [one of the parties] is a non-profit

corporation.” Zikria v. W. Pennsylvania Hosp., 668 A.2d 173, 173 (Pa.

Super. 1995). The instant appeal is a criminal matter, however, and we find

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established it as a national, Asian-interest-based fraternal organization. Like

most fraternities, the corporation has constituted subsidiaries of itself (a

process known as “colonization”) on various college and university campus

throughout the United States.

The corporation developed, published, and directed a nation-wide, new-

member-education program for would-be brothers in its “Pledge Manual.” The

new-member curriculum included physical rites and rituals.

In this case, the Baruch College Colony of Pi Delta Psi took its associate

members to Pennsylvania for the final stages of the program. The members

performed the Crossing Ritual quite brutally and caused the death of an

associate member. Two other New York-based chapters of the corporation

were also present at the hazing event. The Pennsylvania State University

Chapter of Pi Delta Psi (the only functioning subsidiary in the Commonwealth)

had no involvement with or knowledge of this incident.

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nothing in our case law specifically addressing which court has jurisdiction

over it. Jurisdiction presents us with a purely legal issue, for which our

standard of review is de novo and our scope of review is plenary; we “may

consider the issue of jurisdiction sua sponte.” Commonwealth v. Parker,

173 A.3d 294, 296 (Pa. Super. 2017).

The Superior Court has appellate jurisdiction over any appeals not within

the exclusive jurisdiction of either the Commonwealth Court or Supreme Court

of Pennsylvania. See 42 Pa.C.S.A. § 742. After examining the statutes

regarding the other appellate courts’ jurisdiction (See 42 Pa.C.S.A. §§ 722,

762), we determine that this case is properly before us.

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The corporation, by and through its national president, directly

participated in at least one new-member event of the Baruch Colony, although

no national officers attended the Crossing. The national president (who is an

alumnus member of Pi Delta Psi) also helped the student members and officers

conceal the cause of death and the corporation’s connection to it from

investigators. He instructed the student members and officers to lie to police

and to hide the fraternity’s letters, heraldry, and regalia before officers

searched the rented house.

Facing criminal homicide charges, members decided to cooperate with

prosecutors and began to implicate the corporation. The Commonwealth

eventually charged the corporation with a host of crimes, the most severe of

which was murder of the third degree.4 The jury acquitted the corporation of

murder and voluntary manslaughter but convicted it on charges of involuntary

manslaughter and many lesser offenses.

The trial court fined and sentenced the corporation to probation. The

conditions of probation required the corporation to “pay all fines, restitution,

and costs within five years;” to cease all “business within the Commonwealth

during its period of probation, which shall include maintaining, creating,

endorsing, or hosting any chapter, associate chapter, or colony at any college,

university, or other institution of higher education, and hosting, convening, or

attending any event or activity within the Commonwealth;” and to notify all

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4 18 Pa.C.S.A. § 2502(c).

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colleges and university with a Pi Delta Psi chapter or colony of its conviction

and sentence. N.T., 1/8/18, at 28 – 29.

The corporation timely appealed.

III. Analysis

The corporation raises ten appellate issues. They are:

1. Did the trial court deprive the corporation of its

constitutional rights to present its defense by

excluding an expert opinion?

2. Did the trial court deprive the corporation of its

constitutional rights to present its defense by

excluding exhibits as irrelevant?

3. Did the trial court deprive the corporation of its

constitutional rights to present its defense by

curtailing cross-examination of a witness?

4. Did the trial court deprive the corporation of its

constitutional rights to present its defense by refusing

to grant “use immunity” to its co-defendants?

5. Did the trial court deprive the corporation of its

constitutional rights to present its defense by

impairing its closing argument?

6. Did the trial court prejudice the corporation by

allowing the Commonwealth to call it “the fraternity?”

7. Did the verdict slip violate the Due Process Clauses of

both constitutions, by shifting the burden of proof to

the corporation when the word “Guilty” preceded “Not

Guilty?”

8. Did the trial court violate the Due Process Clauses of

both constitutions when it used the term “defendant”

during jury instructions, rather than “the accused?”

9. Did the trial court err by refusing to give certain jury

instructions the corporation requested?

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10. Did the trial court err by refusing a curative instruction

regarding the prosecutor’s closing argument?

See Pi Delta Psi’s Brief at 4-5.

We will address each of the corporation’s claims of error in turn. After

explaining why they are all waived or meritless, we will consider the legality

of the corporation’s probationary sentence.

A. The Exclusion of Expert Testimony

First, the corporation claims the trial court deprived it of a fair trial by

excluding certain expert testimony. The trial court prohibited David L. Westol,

an expert on collegiate fraternities, from testifying that the corporation met

the national standard of care by promulgating and enforcing an anti-hazing

policy. The corporation argues that decision was incorrect.

Such an argument disregards our deferential standard of review for a

trial court’s evidentiary rulings. When reviewing a decision to admit or to

exclude expert opinion testimony, we use an abuse-of-discretion standard.

See Commonwealth v. Powell, 171 A.3d 294, 307 (Pa. Super. 2017),

appeal denied, 183 A.3d 975 (Pa. 2018). Abuse of discretion only “occurs if

the trial court renders a judgment that is manifestly unreasonable, arbitrary

or capricious; that fails to apply the law; or that is motivated by partiality,

prejudice, bias or ill-will.” Hutchinson v. Penske Truck Leasing Co., 876

A.2d 978, 984 (Pa. Super. 2005). In other words, a reasonable judgment by

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the trial court is not an abuse of discretion, even if this Court disagrees with

that judgment.

Here, the corporation makes no argument that the trial court’s decision

to prohibit Mr. Westol from testifying about the standard of care was

manifestly unreasonable. Nor does it identify which Rule of Evidence the trial

court supposedly violated. The corporation merely contends the trial court’s

decision was incorrect and negatively impacted its defensive strategy. The

corporation’s assertion of an incorrect judgment does not persuade us that

the trial court abused its discretion.

The trial court, in preventing Mr. Westol from opining for the jury that

the corporation’s anti-hazing policy and training met Greek Life’s national

standard of care, explained its ruling as follows:

An opinion is not excludable merely because it embraces

an ultimate issue. PA R.E. 704. An expert opinion that

embraces an ultimate issue may be objectionable on other

grounds, however, as the Pennsylvania Superior Court

observed:

Pennsylvania law allows expert opinion testimony on

the ultimate issue. As with lay opinions, the trial

judge has discretion to admit or exclude expert

opinions on the ultimate issue depending on the

helpfulness of the testimony versus its potential to

cause confusion or prejudice.

McManamom v. Washko, 906 A.2d 1259, 1278-1279 (Pa.

Super. 2006).

* * * * *

As to Mr. Westol’s opinion that “[the corporation] acted

within the standard of care, custom, and practice within the

community of Greek-lettered organizations” and that it “was

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not negligent nor did it violate any duty of care towards [the

victim],” Mr. Westol did not testify using legal terms of art,

i.e., “standard of care,” “negligence,” etc., as he did in his

Report. From reading the Report, it is not clear that he

makes these assertions independent of an opinion that [the

corporation’s] conduct was consistent with the standards

within Greek-lettered organizations.

Whether [the corporation] acted in conformity with the

standards of conduct or care found in other [Greek-lettered

organizations] is of no relevance in a criminal case. It will

not help jurors understand the evidence or determine a fact

in issue. For each of these reasons, Mr. Westol’s opinion

that “[the corporation] acted within the standard of care,

custom, and practice within the community of Greek-

lettered organizations” and that it “was not negligent nor did

it violate any duty of care towards [the victim],” is irrelevant

and inadmissible.

Trial Court Opinion, 11/8/17, at 29, 35-36 (some citations and punctuation

omitted).

The trial court’s opinion rejecting Mr. Westol’s opinion testimony on the

national standard of care is firmly rooted in the Rules of Evidence, the criminal

law, and our appellate precedents. The court’s analysis is quite reasonable

and does not misapply or override the law.

Because the prosecution’s theory as to this corporation’s guilt rested

entirely upon its vicarious liability for its agents’ misconduct, we cannot say

that the trial court abused its discretion in excluding the expert’s opinion on

the standard of care. “Corporations are criminally accountable for the actions

of a ‘high managerial agent’ who commits a wrongdoing in the scope of his

office. This corporate accountability is based upon a simple principal/agency

relationship and not upon a corporation affirming the officer’s act.”

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Commonwealth v. Penn Valley Resorts, Inc., 494 A.2d 1139, 1142 (Pa.

Super. 1985) (interpreting and applying 18 Pa.C.S.A. § 307).

Thus, the instant corporation would be vicariously liable for everything

that the colony’s officers and the national president did in furtherance of the

new-member-education program and its initiations rituals, regardless of

whether the corporation met the national standard of care by disavowing

hazing. To the extent that the local and national officers committed any

crimes in causing the death of this associate member, so did the corporation,

i.e., the principle whose interests all of the agents/officers were pursuing when

they physically assaulted the freshman and tried to hide their crimes.

Even if the corporation’s anti-hazing policy and training met the national

standard of care for all Greek-lettered organizations, meeting industry

standards will not excuse involuntary manslaughter, hazing, and the other

crimes for which the jury convicted this corporation, when ‘high managerial

agents’ committed those crimes specifically as part of the rites and rituals for

imitation into the corporation’s membership. Moreover, if the officers of the

Baruch Colony and the national president met the national standard of care

and this associate member died anyway, then Greek Life certainly needs to

raise its national standards. If, on the other hand, their conduct did not meet

the national standard of care by their conduct, then the corporation,

vicariously speaking, did not meet it, as well. Either way, the opinion

testimony that the corporation met the national standard of care was of no

relevance to the ultimate issue of the corporation’s criminal culpability.

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Thus, the trial court was well within its sphere of discretion in deeming

Mr. Westol’s opinion on the corporation’s conformity to the national standard

of care irrelevant in a criminal trial. Accordingly, we dismiss the first appellate

issue as meritless.

B. The Exclusion of Certain Exhibits

As its second appellate issue, the corporation argues that the trial court

erroneously excluded two exhibits from evidence. The first piece of excluded

evidence was a letter to the prosecutors, which the corporation claims would

show that the student members performed the Crossing in a manner “beyond

the normal Rituals.” Pi Delta Psi’s Brief at 14 (some punctuation omitted).

The other piece of evidence was “an excerpt from Daniel Lee’s proper

statement transcript showing the instructions by the prosecutors to the

witness . . . .” Id. at 15.

The corporation cites no case law or authority to support its contention

that the exhibits were admissible. See id. 14 – 15. It simply offers bald

assertions of error without any basis in law or citations to the record.

The Pennsylvania Rules of Appellate Procedure do not permit conclusory

arguments. Each distinct issue in the argument section of a brief must, at a

minimum, contain “citations of authorities as are deemed pertinent.”

Pa.R.A.P. 2119(a). When a party “cites no pertinent authority to substantiate

[its] claim . . . appellant’s issue is waived.” Commonwealth v. Simmons,

56 A.3d 1280, 1286 (Pa. Super. 2012), affirmed, 91 A.3d 102 (Pa. 2014).

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The corporation’s conclusory argument leads to the waiver of this issue.

C. The Cross-Examination of Sheldon Wong

The corporation asserts that the trial court prohibited it from completing

its cross-examination of Sheldon Wong. It does not, however, claim that this

was an error of law or an abuse of discretion, much less explain why reversal

is in order. The corporation’s brief only summarizes and editorializes on

Wong’s testimony. See Pi Delta Psi’s Brief at 14. Because we discern no

argument from the corporation on this issue and it has, again, failed to cite

legal authority for its position, we dismiss this issues as waived. See Pa.R.A.P.

2119(a); Simmons, supra.

D. The Co-Defendants’ Privileges against Self-Incrimination

The corporation’s fourth appellate issue seeks to establish a new, state-

constitutional right. Specifically, it requests judicially imposed “use immunity”

for its 34 co-defendants – the student members who performed the physical

hazing. The corporation only called Jimmie Mei. It claims that its attempt to

examine Mei illustrates what would have transpired, if it had also called the

other 33 co-defendants.

Mei asserted his Fifth Amendment privilege against self-incrimination.

The Commonwealth and the trial court both declined to immunize Mei from

prosecution. Next, the corporation asked the trial court to immunize Mei from

his testimony being used against him – hence, “use immunity.” The trial court

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refused. According to the corporation, this refusal deprived it of its rights

under the Constitution of the Commonwealth of Pennsylvania. See Pi Delta

Psi’s Brief at 18.

In its appellate brief, the corporation quotes Government of the

Virgin Islands v. Smith, 615 F.2d 964 (3rd Cir. 1980), overruled by United

States v. Quinn, 728 F.3d 243 (3rd Cir. 2013) (en banc), for the proposition

that a trial court may grant use immunity to co-defendant witnesses. After

admitting Smith is no longer the law of the Third Circuit, the corporation

argues that “its reasoning holds true for the Pennsylvania constitutional trial

right to present a defense.” Pi Delta Psi’s Brief at 17. The corporation would

have us graft Smith onto the Constitution of the Commonwealth of

Pennsylvania. See id.

The record reveals, however, that the corporation did not make this

argument to the trial court. Defense counsel mentioned neither the state

constitution nor Smith at trial. He only sought use immunity (at the time,

calling it “limited immunity”) as an afterthought, once the court and the

Commonwealth denied his original request to immunize Mei completely. See

N.T., 11/17/17, at 144.

“Issues not raised in the lower court are waived and cannot be raised

for the first time on appeal.” Pa.R.A.P. 302(a). We have said “issues, even

those of constitutional dimension, are waived if not raised in the trial court. A

new and different theory of relief may not be successfully advanced for the

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first time on appeal.” Commonwealth v. Cline, 177 A.3d 922, 927 (Pa.

Super. 2017), appeal denied, 187 A.3d 210 (Pa. 2018).

The corporation did not argue to the trial court that its use-immunity

request was based upon a novel interpretation of Article I of the Constitution

of the Commonwealth of Pennsylvania. Accordingly, we dismiss its fourth

appellate issue as waived.

E. Prohibition on Use of Metaphorical Shirts at Closing Argument

For its fifth claim of error, the corporation argues the trial court impaired

its closing argument by forbidding the display of empty shirts to the jury. It

asserts the “trial court abused its discretion in denying the defendant’s use of

images of metaphorical shirts during closing arguments . . . The metaphorical

shirts were intended to focus the jury on the lethal tacklers and their leader,

Sheldon Wong. The court deprived the defendant of this valuable tool.” Pi

Delta Psi’s Brief at 15. The corporation then quotes two appellate cases, but

it does not analogize those precedents to its own or claim that the trial court

violated them. It simply states, “[a] new trial should be granted.” Id. at 16.

We cannot discern the point of this argument. When an appellant’s

argument is underdeveloped, we may not supply it with a better one. In such

situations, “[w]e shall not develop an argument for an appellant, nor shall we

scour the record to find evidence to support an argument; instead, we will

deem the issue to be waived.” Commonwealth v. Cannavo, 199 A.3d 1282,

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1289 (Pa. Super. 2018), reargument denied (Jan. 29, 2019); see also

Pa.R.A.P. 2119.

Because the corporation has failed to craft a discernable, legal argument

in support of this claim, we dismiss it as waived.5

F. The Commonwealth’s References to The Corporation as “The Fraternity”

Next, the corporation claims the trial court should have prohibited the

prosecution for calling it “the fraternity” during trial. It believes that label

confused the jurors by combining the corporation with its 34 co-defendants –

i.e., its members and officers. The corporation asserts the trial court “had the

authority pursuant to the Pennsylvania Rules of Evidence to control the mode

of interrogating witnesses at trial in reference to ‘the fraternity.’” Id. (citing

Pa.R.A.P. 611(a)).

While that statement is correct – the trial court had such authority – it

was under no obligation to exercise its authority as the corporation desired.

We review application of Pa.R.A.P. 611 deferentially and only reverse if there

was a “clear abuse of discretion or error of law.” Commonwealth v. Boxley,

838 A.2d 608, 615 (Pa. 2003).

Pennsylvania Rule of Evidence 611(a) provides:

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5 Additionally, we note that a trial court has great discretion in limiting closing

arguments. See, e.g., Commonwealth v. Chamberlain, 612 A.3d 107 (Pa.

2011). Here, the corporation has not explained how the trial court’s decision

constituted to an abuse of discretion. Thus, even if this Court were to reach

the merits, we would find no grounds for reversal.

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(a) Control by the Court; Purposes. The court should

exercise reasonable control over the mode and order of

examining witnesses and presenting evidence so as to:

(1) make those procedures effective for determining

the truth;

(2) avoid wasting time; and

(3) protect witnesses from harassment or undue

embarrassment.

Pa.R.A.P. 611(a).

The corporation does not claim the trial court either abused its discretion

or misinterpreted Rule 611. The corporation simply expresses its

disagreement with how the trial court chose to manage the questioning of

witnesses and their replies. As such, its argument disregards our deferential

standard of review and fails to persuade us that an abuse of discretion

occurred.

We conclude this issue is meritless.

G. The Verdict Slip

For its seventh appellate issue, the corporation asserts a novel theory –

namely, that the trial court’s listing of “Guilty” before “Not Guilty” on the

verdict slip violated both constitutions. It claims (without reference to any

source) that, historically, verdict slips were blank, and jurors handwrote the

words “Guilty” or “Not Guilty” after each offense.

In the corporation’s view, the multiple-choice-style verdict slip violates

the constitutional presumption of innocence. It fears that this tricked the

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jurors into subconsciously thinking the corporation had to prove its own

innocence. To make this connection, the corporation cites and quotes articles

from The Legal Intelligencer, The Philadelphia Inquirer, The Tribune Democrat,

The Star-Ledger, websites seeking to abolish judicial elections, and

sociological studies correlating ballot position to election results. The only

law the corporation cites is Akins v. Secretary of State, 904 A.2d 702 (N.H.

2006) (declaring a New Hampshire statute unconstitutional, because it listed

political candidates on the ballot in alphabetical order and so irrationally

favored those with certain names over others).

The Commonwealth responds that the corporation has waived this claim

by failing to cite any authority. It also argues that we have previously rejected

this constitutional theory in Commonwealth v. Selinski, 18 A.3d 1229 (Pa.

Super. 2011), partially vacated on other grounds, 100 A.3d 206 (Pa. 2014).

Finally, the Commonwealth notes that the trial court gave the standard jury

instruction on the presumption of innocence, thereby negating the

corporation’s theory of a Due Process violation.

We disagree with the Commonwealth as to waiver. Its argument places

the corporation in a catch-22. The corporation advances a new, constitutional

theory to expand Due Process protections under both constitutions. Thus, it

cannot possibly cite precedents that support its reading of the Due Process

Clauses, because no court has yet concluded that such protections exist. That

fact may favor the Commonwealth on the merits, but it is hardly grounds for

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waiver. Otherwise, no party could ever frame a new theory of constitutional

jurisprudence for judicial review.

The Commonwealth also erroneously contends that this Court disposed

of the corporation’s claim in Selinski, supra. There, we found waiver of this

constitutional question due to an underdeveloped appellate argument. While

the panel proceeded to offer dictum that, “even if Appellant had not waived

the issue, his argument is without merit,” that observation was not

precedential. Id. at 1235. Thus, Selinski does not control the merits of this

issue.

We therefore address those merits now. In reviewing a constitutional

claim, we face a pure question of law, “for which our standard of review is de

novo and our scope of review is plenary.” Commonwealth v. Veon, 109

A.3d 754, 763 (Pa. Super. 2015), vacated on other grounds, 150 A.3d 435

(Pa. 2016).

The Fourteenth Amendment to the Constitution of the United States

dictates that “No state shall . . . deprive any person of life, liberty, or property,

without due process of law . . . .” Pennsylvania courts treat Article I, § 1 as

the equivalent of the Fourteenth Amendment’s Due Process Clause. See,

e.g., Johnson v. Allegheny Intermediate Unit, 59 A.3d 10, 20 (Pa.

Cmwlth. 2012) (stating that, when applying Article I, § 1, a “due process

inquiry must take place.”). The corporation does not assert any greater rights

under Article I, § 1 than under the Fourteenth Amendment. Moreover, the

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Supreme Court of Pennsylvania has recently said that, under the Fourteenth

Amendment and Article I, § 1:

the amount of process which is due in a particular case is

determined by application of a test which considers three

factors: (1) the private interest affected by the

governmental action; (2) the risk of an erroneous

deprivation together with the value of additional or

substitute safeguards; and (3) the state interest involved,

including the administrative burden the additional or

substitute procedural requirements would impose on the

state.

In re Fortieth Statewide Investigating Grand Jury, 197 A.3d 712, 717

(Pa. 2018) (citing Mathews v. Eldridge, 424 U.S. 319, (1976) and Bundy

v. Wetzel, 184 A.3d 551 (Pa. 2018)) (quotation marks omitted). We address

the corporation’s federal and state constitutional claim simultaneously.

The parties have not directly addressed their arguments to the three-

part, Mathews/Bundy test, but they have offered theories that fall roughly

within its parameters. For instance, the corporation claims that (1) the

“Guilty”-before-“Not-Guilty” verdict slip violated its fundamental right to be

presumed innocent; (2) scholarly research ties primacy of place on a ballot to

an increased chance of winning, which the corporation relates to the jury

system; and (3) amending the verdict slip would cost the Commonwealth

nothing. See Pi Delta Psi’s Brief at 25.

The Commonwealth attacks the corporation’s theory on the second

prong of the test. In the Commonwealth’s view, because the trial court

instructed the jury on burden of proof and presumption of innocence, there

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was no procedural deprivation of the corporation’s right to be presumed

innocent. The Commonwealth also emphasizes that we legally must presume

that the jury followed those instructions without any evidence to contrary.

That the corporation had a right to be presumed innocent at trial “is the

undoubted law, axiomatic and elementary, and its enforcement lies at the

foundation of the administration of our criminal law.” Coffin v. United

States, 156 U.S. 432, 453, 15 S. Ct. 394, 403, 39 L. Ed. 481 (1895). The

corporation claims the “Guilty”-before-“Not-Guilty” verdict slip jeopardized its

most fundamental right of criminal procedure. It therefore satisfies the first

prong of the Mathews/Bundy test.

We also agree with the corporation that it would cost trial courts nothing

to list “Not Guilty” before “Guilty” on verdict slips. The Commonwealth has

not disputed this, nor has it identified any state interest for listing “Guilty”

first. We find that the third prong favors the corporation’s theory as well.

However, the corporation’s Due Process claim falters at the second step

of the Mathews/Bundy test. We are unpersuaded that the verdict slip

deprived the corporation of its right to be presumed innocent. Uninformed

electors, who mindlessly vote for the first name on a ballot, correlate poorly

to well-informed jurors, who collectively deliberate before reaching a verdict.

While the sociological studies and legal articles that the corporation cites

are worrisome commentaries on our democracy, they, fortunately, are not

indicative of how juries function. Unlike voters who may simply touch the first

name on a screen in a voting booth, the twelve jurors who tried the

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corporation were oath-bound to follow the law and instructions of a learned

trial judge, who well and fully instructed them on their duties and the law.

As the Commonwealth rightly notes and the Selinski Court said, “the

trial court instructed the jury on the presumption of innocence and the

Commonwealth’s burden of proof, following the language of Pennsylvania

Standard Jury Instruction (Criminal) 7.01.” Id. at 1235. We find this dicta

persuasive and adopt it into our analysis.

And, regarding the case at bar, the jurors were fully informed about the

corporation’s role in the hazing death. They sat through a week-long trial,

heard testimony of witnesses, and reviewed copious physical evidence. Thus,

these jurors knew far more about their decision and its implications than

electors who arbitrarily vote for the first name they see. Additionally, the

margins of error in close elections, to which the corporation’s studies referred,

do not occur in a criminal-jury trial. Criminal juries must reach a unanimous

decision.

The corporation’s jurors clearly understood their role and legal

obligations. They did not, as the corporation suggests, simply check-off the

first box of “Guilty” and return to the courtroom. Had they done so, the jurors

would have convicted the corporation of the first charge on the verdict slip –

namely, murder of the third degree. But, as the verdict slip indicates, they

did not. See Verdict at 1. Instead, the jurors left the first two charges blank,

followed their instructions, proceeded to the subsequent offenses, and

convicted the corporation of the third charge – involuntary manslaughter. See

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id. This jury demonstrated that a “Guilty”-before-“Not-Guilty” verdict slip did

not undermine the presumption of innocence.

Finally, there is no Rule of Criminal Procedure regarding the format of a

verdict slip. Any such mandate, if appropriate, must come from the Supreme

Court of Pennsylvania. “The Supreme Court shall have the power to prescribe

general rules governing practice, procedure, and the conduct of all courts . . .

.” Pa. Const. Article V, § 10(c). If we created the rule the corporation

requests, we would usurp the power of the Supreme Court. The criminal-

defense bar may suggest this new rule to the Supreme Court’s Criminal

Procedural Rules Committee, should it so desire. We, however, may not

create it as a constitutionally enshrined right.

Because we conclude that the verdict slip did not infringe upon the

corporation’s right of presumed innocence, no Due Process violation occurred,

and no appellate relief is due.

H. The Trial Court’s Use of the Word “Defendant”

The corporation raises another, novel, constitutional theory. It claims

that the trial court violated its Due Process rights by referring to it as the

“defendant” rather than the “accused.”

The corporation again relies upon its right of presumed innocence and

claims a person “can be accused without being a defendant, that is, an accused

can be simply ‘blamed.’ . . . a defendant is always an accused, but an accused

is not even constitutionally obliged to defend.” Pi Delta Psi Brief at 27. The

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corporation thinks the term “defendant” carries a negative connotation that it

committed a crime.6

The Commonwealth again argues for waiver, on the grounds that the

corporation cited no law for its constitutional claim. We again refuse to find

waiver for the reasons above.

On the merits, the corporation reasserts its fundamental right of the

presumption of innocence. Thus, it satisfies part-one of the Mathews/Bundy

test. See also in re Fortieth Grand Jury, supra.

Also, the corporation proposes a simple remedy – namely, that trial

courts call defendants “the accused” during the jury instructions. The

Commonwealth neither argues this is impractical nor that there is a state

interest in referring to defendants as “defendants.” The corporation thus

satisfied the third part of the test.

But, again, the corporation’s theory cannot meet the second prong of

Mathews/Bundy. Requiring all trial judges to call defendants “the accused”

is a cure in search of an illness. While it is logically true that all accused are

not defendants and all defendants are accused, the corporation fails to connect

that tautology with an undermining of the presumption of innocence. Thus,

the corporation has failed to demonstrate how the trial court’s verbiage

____________________________________________

6We discussed our scope and standard of review and the test for a due process

challenge in the preceding subsection on the jury-slip issue. See Subsection

G., supra. We therefore need not restate them in this subsection.

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deprived it of any right, beyond its mere speculative belief that some harm

may have occurred.

And, as with the verdict slip above, we again note that the trial court

fully instructed the jury on the presumption of innocence, the jury acquitted

the then-accused (now-convicted) corporation of the Commonwealth’s most

serious accusations, and no Rule of Criminal Procedure or any Standard Jury

Instruction compels the result the corporation seeks. Accordingly, for all of

the reasons above, we again perceive no Due Process violation. Any request

to amend the Rules of Criminal Procedure or the Standard Jury Instruction

should be directed to the appropriate committees of the Supreme Court of

Pennsylvania.

Because the corporation has not shown how the trial court’s use of the

word “defendant” infringed its constitutional rights, we dismiss this appellate

issue as meritless.

I. Jury Instructions

The corporation, for its ninth claim of error, provides a list of jury

instructions it desired the trial court to give. It believes these instructions

were necessary to protect its freedom of association under the First

Amendment to the Constitution of the United States.

The three paragraphs of argument on this issue are muddled, at best.

They do not reference anything of record to demonstrate why the requested

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jury instructions were, as the corporation puts it, “crucial.” Pi Delta Psi’s Brief

at 28. Again, conclusory arguments are not viable under Pa.R.A.P. 2119.

The corporation has waived this claim.

J. The Prosecution’s Closing Argument

For its final issue, the corporation alleges the trial court failed to correct

the prosecution’s appeal to passion and sympathy. This argument is even less

developed than the jury-instruction claim above, in that it lacks any citation

to legal authority and is wholly conclusory. Accordingly, we also dismiss it as

waived. See Pa.R.A.P. 2119.

K. The Legality of the Corporation’s Sentence

Having disposed of the corporation’s ten appellate issues, we now raise,

sua sponte, an eleventh. We question whether the trial court had authority

under Pennsylvania’s criminal law to impose a condition of probation that,

practically speaking, exiles this corporation from Pennsylvania for ten years.7

The issue of “whether the trial court possessed the authority to impose a

particular sentence implicates the legality of the sentence . . . .”

Commonwealth v. Wilson, 11 A.3d 519, 525 (Pa. Super. 2010) (en banc),

vacated on other grounds, 67 A.3d 736 (Pa. 2013).

____________________________________________

7The Commonwealth recommended an exile of 20 years at sentencing. See

Commonwealth’s Sentencing Memorandum at 2-3.

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The legality of a criminal sentence is non-waivable, and this Court may

“raise and review an illegal sentence sua sponte.” Commonwealth v.

Muhammed, 992 A.2d 897, 903 (Pa. Super. 2010). Because the legality of

a sentence presents a pure question of a law, our scope of review is plenary,

and our standard of review is de novo. See Wilson, supra. “If no statutory

authorization exists for a particular sentence, that sentence is illegal and . . .

must be vacated.” Commonwealth v. Stevenson, 850 A.2d 1268, 1271

(Pa. Super. 2004) (en banc) (emphasis added).

At sentencing, the Commonwealth requested that the trial court prohibit

the corporation:

from conducting any business within the Commonwealth

during its period of probation, to include a prohibition

against maintaining, creating, endorsing, or hosting, etc.

any chapter, associate chapter, or colony at any college,

university, or other institution of higher education within the

Commonwealth and . . . from hosting, convening, or

attending any event or activity (i.e., National Convention,

National Conference, “Crossing” weekend, etc.) within the

Commonwealth.

Commonwealth’s Sentencing Memorandum at 3.

After admitting that “Pennsylvania statutes regarding sentencing do not

specifically enumerate the authorized sentence for a corporate defendant,”

the Commonwealth argued “it can be logically deduced that, while a

corporation could not be incarcerated, a corporation does have an existence

sufficient to subject it to [a trial court’s] authority to impose fines and a period

of probation.” Id. at 8 (citing 18 U.S.C.A. § 3551(c)). Relying upon the

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Federal Sentencing Code, the Commonwealth contended that the trial court

could exercise vast authority over this corporation, because nothing in the

Pennsylvania Sentencing Code expressly prohibited it from doing so. See

Commonwealth’s Sentencing Memorandum at 8.

The trial court, accepting the Commonwealth’s reasoning, stated:

In researching and reviewing cases where a corporate

defendant has been convicted – there’s nothing in

Pennsylvania – but there are some federal cases, and you

probably heard of Exxon or BP, whatever they called it at

the time. And, in reviewing the sentencing statute and the

statute for corporate liability that was applied and discussed

in a pretrial Opinion and Order, I see no - - I see nothing

that prevents the court from issuing a sentence of probation

to ensure that the court’s very specific mandates to the

fraternity be carried out.

N.T., 1/8/18, at 24. The court then imposed a sentence of ten years’ probation

and enjoined the corporation from conducting any business, owning any

subsidiary or property, or attending any event in Pennsylvania during that

time. See id. at 28 – 29.

As the Commonwealth and trial court recognized, Pennsylvania’s

criminal law, unlike the federal statutes and guidelines, does not specifically

address the punishment of corporate defendants (i.e., legal fictions). See 42

Pa.C.S.A. § 9721 (drawing no distinction between organizational defendants

and living ones). Four of the seven sentencing options in Section 9721 deal

with incarceration and intermediate punishments, penalties that are

metaphysically inapplicable to corporate persons.

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One commentator has observed that convicted corporations “are treated

a bit like children; as neither can be put in prison. Instead, judges may order

them to pay fines and to make reforms.” Brandon L. Garret, TOO BIG TO JAIL:

HOW PROSECUTORS COMPROMISE WITH CORPORATIONS, 146 (2014). Neither

Professor Garret’s research nor this Court’s revealed any case where, as a

condition of probation, a court had outlawed a corporation from conducting

any business in an entire state. See id., Chapter 6 “The Carrot and the Stick,”

145 – 171. Moreover, the Federal Sentencing Guidelines’ chapter on the

punishment of corporate defendants does not suggest outlawry as a condition

of probation. See Chapter Eight, Federal Sentencing Guidelines (U.S.

Sentencing Comm’n 2018).

Even the case the trial court referenced at sentencing – BP’s exploded

oil rig, Deepwater Horizon – did not terminate BP’s business operations in the

United States or Louisiana. United States v. BP, 1/29/13 Order of Sentence,

2:12-cr-00292-SSV-DEK (E.D. La. 2013). As part of its plea bargaining, BP

had to hire two corporate monitors for four years to supervise safety

procedures and to focus on ethics and compliance. See id. There were other

probationary conditions, such as revising their oil-spill response plan, hiring

outside auditors, and disclosing future safety violations. The most onerous

condition was suspension of the company from entering a contract with the

United States government for one year. See id. We therefore conclude the

trial court’s reliance on BP to exile the corporation at bar from Pennsylvania

for ten years was misplaced.

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Also, the trial court’s attempt to justify the corporation’s exile by the

General Assembly’s silence is erroneous for several reasons. First, it violates

this Court’s precedents. “If no statutory authorization exists for a particular

sentence, that sentence is illegal and subject to correction.” Stevenson, 850

A.2d at 1271.

Second, the trial court’s assumption of authority based upon legislative

silence disregards the General Assembly’s mandate that its penal code “shall

be strictly construed.” 1 Pa.C.S.A. § 1928(b)(1). Contrary to the claim of the

Commonwealth in its Sentencing Memorandum, a trial court may not logically

deduce that it possesses penal authority greater than what the legislature has

expressly granted to the court. The statute authorizing conditions of probation

contains no term expressly empowering a trial court to discontinue a business

entity’s commerce within this Commonwealth. See 42 Pa.C.S.A. § 9754(c).

Most of the authorized conditions in Section 9754(c) are irrelevant to

corporations. Some examples include ordering a probationer to meet family

obligations, undergo drug and alcohol screening, attended treatment classes,

and maintain employment and a permanent residence. The Section 9754(c)

conditions that could apply to corporations are (2.1) community service; (8)

pay restitution; (10) report, through its agents, to a probation officer; (11)

pay its fines and (13) “satisfy any other conditions reasonably related to the

rehabilitation of the defendant and not unduly restrictive of his liberty or

incompatible with his freedom of conscience.” Id.

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Only 42 Pa.C.S.A. § 9754(c)(13) potentially provides the authority that

the trial court exerted when it outlawed the corporation. But outlawry from

the whole Commonwealth bears no relation to the corporation’s rehabilitative

process. Instead, it is punitive in nature, and such a condition of probation

cannot be sustained under the language of subsection (c)(13). Also, this

condition of probation unjustly punishes the Penn State Chapter of Pi Delta

Psi, students who had absolutely nothing to do with the hazing death in this

case. It also totally restricts the corporation’s future expansion within this

Commonwealth at any other colleges or universities. The corporation may not

own property, attend Greek Life events, or enter contracts in Pennsylvania,

during this term of probation. It thus unduly restricts the corporation’s liberty

by completely cutting it off from the Pennsylvania marketplace.

Third, the probationary condition flies in the face of the common law of

corporations. It has long been the common law that corporations “may not

commit treason, nor be outlawed, nor excommunicated, for they have no souls

. . . .” The Case of Sutton’s Hospital, 77 Eng. Rep. 960 (K.B. 1612). The

Supreme Court of Pennsylvania, in that same vein, declared a corporation’s

special conditions of sentencing to be illegal. See Pittsburgh, Virginia &

Charleston Railway Co. v Commonwealth, 12 W.N.C. 280 (Pa. 1882)

(holding that the only permissible sentence for a corporate defendant was a

fine, not specific performance to right the wrong it had committed). While the

Pennsylvania Sentencing Code has expanded the punishments for convicted

corporations beyond fines to include Section 9754(c)’s conditions of probation,

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we find nothing therein that supplants the common law prohibition on

outlawing a corporate entity.

Without such legislative authorization, we conclude the common law still

holds validity. The corporation cannot be criminally “outlawed, nor

excommunicated, for [it has] no [soul].” Sutton’s Hospital, supra. An

amoral corporation is no more amenable to such penalties, than it is to

incarceration in a penitentiary.

In reality, corporations have no moral compass, or, as the Lord Chief

Justice Coke put it, “no soul.” Id. A corporation cannot feel the guilt of the

harm it caused, even when that harm resulted in the tragic loss of human life,

because it feels nothing at all. This corporation, though vicariously liable to

make redress for the illegalities of its agent, did not kill anyone. While its

negligent management may have fostered a corporate culture that permitted

or even encouraged wanton behavior by student members, the corporation

did not tackle or physically attack anyone. It has no body with which to do

so. And so outlawry of a corporation makes no more sense now than it did in

the 17th century, because, like any tool, the corporation is no more morally

accountable than a hammer or a sword or a firearm. It is the wielder who

sins; not his or her weapon.

Yet the trial court is not without authority to oversee the rehabilitation

of the corporation’s culture and transfer the tool into the hands of agents who

will wield it for good. We believe a Pennsylvania trial court could impose many

of the conditions of probation used in BP, supra, against a corporation, within

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the bounds of its discretion and 42 Pa.C.S.A § 9754(c)(13). Professor Garrett

also offers many additional ideas to transform a corporate ethos that a trial

court might, if properly fitted to the circumstances at bar, order as well. See

Garrett, supra.

But, finding no authority in statute or at common law to support the trial

court’s decision to enjoin the corporation from conducting any business within

this state for ten years, we conclude that portion of its sentence is illegal. We

therefore vacate that sentence. Because this “upsets the original sentencing

scheme of the trial court,” we remand for resentencing. Commonwealth v.

Goldhammer, 517 A.2d 1280, 1283 (Pa. 1986).

The trial court may fashion new terms of probation to monitor how the

corporation conducts its business throughout this Commonwealth and whether

it is taking steps nationally to reform its corporate culture of hazing. But the

trial court may not outlaw it from participating in the commerce of this

Commonwealth.

Judgment of sentence vacated. Case remanded for resentencing.

Jurisdiction relinquished.

Judge Lazarus joins the Opinion.

Judge Colins files a Dissenting Opinion.

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Judgment Entered.

Joseph D. Seletyn, Esq.

Prothonotary

Date: 5/23/19

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