Com. v. McLaine, P.

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NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37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