Com. v. Steinberg, A.

J-A23016-14
NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
COMMONWEALTH OF PENNSYLVANIA, IN THE SUPERIOR COURT OF
PENNSYLVANIA
Appellee
v.
ARNOLD STEINBERG,
Appellant No. 1761 WDA 2012
Appeal from the Judgment of Sentence entered October 24, 2012,
in the Court of Common Pleas of Allegheny County,
Criminal Division, at No(s): CP-02-CR-0013930-2011
BEFORE: DONOHUE, ALLEN, and MUSMANNO, JJ.
MEMORANDUM BY ALLEN, J.: FILED AUGUST 26, 2014
pro se from the judgment of
sentence entered after a jury convicted him of two counts of the
.1 We affirm.
convictions as follows:
The [Commonwealth] charged Appellant with [the]
unauthorized practice of law. There were two separate
accusations of criminality: the first inv
resolution of a personal injury matter for Marcie Caliguire;
Mrs. Batis in a financial securities matter. In both
instances, the [Commonwealth] accused [Appellant] of
practicing law after he was disbarred [by consent] on
[January 29,] 2009. The [Commonwealth] presented
evidence from Ms. Caliguire, her father, John, opposing
____________________________________________
1
42 Pa.C.S.A. § 2524.
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counsel in the securities matter, Mrs. Batis[,] and an
The
exhibits.
Personal Injury Caliguire Matter
Marci Caliguire was in an automobile accident in North
Carolina in September, 2007. She talked with her father
about it and he recommended she call [Appellant]. She
the attorney-
sent a form letter to Ms. Caliguire. The topic was the
statement to her was as follows:
$5,000.00 and the check and Release are on the way
to my office. We could not get more because of
notations in the records that you had other vehicular
accidents and that you had told the doctors that you
had basically recovered. Based upon everything,
this is far better than having to retain North Carolina
counsel to file an action that would be a major
distraction to you in the forms of depositions,
hearings, independent medical exams, etc. Please
The date of this communication from [Appellant] was
November 10, 2009. The date of his disbarment was 9
months earlier [on] January 29, 2009. At no time did
[Appellant] inform Ms. Caliguire that he was no longer a
evidence.
***
Financial Securities Batis Matter
Through hard work, Carol and Nicho
accumulated some assets through their 37 years of
marriage. They chose to invest this money. They gave
their money to a brokerage firm, Stifel Nicholaus.
Sometime in 2008, Batis wanted to sell some of their stock
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in response to the market correction the United States was
experiencing. Their contact person, Mr. Phillip Kontul,
result, their stock was not sold as quick as they would
have liked. They lost money. Batis estimated it to be
about $95,000.
This was not the first time Batis experienced such an
event. Around 2001, Batis suffered more substantial
losses around $250,000. Batis pursued the matter in an
arbitration forum. In 2003, the arbitration panel ruled in
Bati
[Appellant].
With this history of success, Batis reached out to
[Appellant] to help them with the more recent matter. In
August, 2008, Batis entered into a contract with
[Appellant]. [Appellant] agreed to act as their attorney to
inference can be drawn that Appellant was paid the $1,000
called for in the agreement to start his representation.]
[Appellant] filed a Statement of Claim on behalf of Batis.
This document details the particulars of the claim. A
hearing date was set for late October, 2009.
About a month before the hearing, [Appellant]
communicated an offer he received to settle the case. The
offer was $30,000. His advice was that Batis
the entire 95-
success, the offer was rejected by Batis.
A few days before the hearing, [Appellant] and Batis
[met] in his office to prepare. The meeting also included
the presence of expert witnesses. [Appellant] told Batis
they were needed. Batis accepted the advice. The hearing
far different than the $95,000 Batis calculated and
significantly less than the $30,000 that was negotiated by
[Appellant].
At home that evening, Batis began to do some
research. [They] learned [Appellant] was disbarred. Batis
was never told by [Appellant] that he was disbarred. They
never received a letter from him saying he was disbarred.
His date of disbarment was January 29, 2009.
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Trial Court Opinion, 8/5/13, 3-6 (citations to notes of testimony, exhibits
and footnotes omitted).
In his defense, Appellant testified and, as to both matters, asserted
that the clients suffered no harm. In addition, Appellant claimed that what
the jury convicted Appellant of two counts of the unauthorized practice of
law. On October 24, 2012, the trial court sentenced Appellant to an
aggregate term of eighteen months of probation, as well as restitution and
court costs. This timely appeal followed. Both Appellant and the trial court
have complied with Pa.R.A.P. 1925.
Appellant raises the following issues:
1.
2. Whether the cumulative effect of the numerous errors
and instances of prejudice committed by the Trial [Court],
served to deprive [Appellant] of a fair trial?
3. Whether the acts of which [Appellant] was accused
were de minimus to the point where the Trial Court should
have dismissed the charges brought against [Appellant]?
4. Whether the Trial Court erred in refusing to include the
Proposed Jury Instructions of [Appellant] as part of its
Charge to the Jury?
comply with Pa.R.A.P. 2116(a), in that each of the above issues are not
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supported by a separate delineated argument section. This has rendered
Commonwealth contends that all of Appellan
Citing Pa.R.A.P. 302(a), the Commonwealth first contends that
raise the issues with the trial court, and notes that Appellant cannot rectify
his error by raising the issues for the first time in his Pa.R.A.P. 1925(b)
-7 (quoting Commonwealth v.
Kohan, 825 A.2d 702, 706 (Pa. Super. 2003)). Additionally, the
Commonwealth asserts that any issue raised by Appellant that did not
appear in his Rule 1925(b) statement is waived. Pa.R.A.P. 1925(b)(4)(vii).
Finally, the Commonwealth supports its waiver argument by averring that all
Brief at 7. Accordin
either because Appellant does cite to the record or relevant legal authority,
Commonwealth v. Berry, 877 A.2d 479, 485 (Pa. Super. 2005), or has
inadequately developed his claim for relief. See generally,
Commonwealth v. Spotz, 18 A.3d 244 (Pa. 2011). The trial court has also
found waiver with regard to several issues. See Trial Court Opinion, 8/5/13.
We will address waiver relative to each issue raised by Appellant.
Appellant first mounts a constitutional challenge to the UPL statute.
The pertinent statutory section reads as follows:
§ 2524. Penalty for unauthorized practice of law
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(a) General rule. Except as provided in subsection (b)
[(relating to practice by associations)], any person,
including but not limited to, a paralegal or legal assistant,
who within this Commonwealth shall practice law, or who
shall hold himself out to the public as being entitled to
practice law, or use or advertise the title of lawyer,
attorney at law, attorney and counselor at law, counselor,
or the equivalent in any language, in such a manner as to
convey the impression that he is a practitioner of the law
of any jurisdiction, without being an attorney at law or a
corporation complying with 15 Pa.C.S. Ch. 29 (relating to
professional corporations), commits a misdemeanor of the
third degree upon a first violation. A second or
subsequent violation of this subsection constitutes a
misdemeanor of the first degree.
42 Pa.C.S.A. § 2524(a).
In support of his constitutional challenge, Appellant asserts that
inguishes
-admitted attorneys versus people who had
Id. at 14 n.10. Thus, Appellant
Id. at 14-15.
As to his specific charges, Appellant additionally argues that in the
Director of Arbitration [and] he was acting without any intent to violate the
Id. at 13. As to the Caliguire matter, his actions in
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accidentally had the wrong letterhead, . . . would also appear to not violate
d).
his Pa.R.A.P. 1925(b) statement resulted in waiver of his claim. Our review
of the statement sup See generally,
Commonwealth v. Hansley, 24 A.3d 410 (Pa. Super. 2011). Nonetheless,
declared unconstitutional unless it clearly, palpably and plainly violates the
Commonwealth v. Cotto, 753 A.2d 217, 219 (Pa. 2000)
Id.resolved in favor of finding that the legislative enactment passes
Commonwealth v. Waddell, 61 A.3d, 198, 202
(Pa. Super. 2012).
Supreme Court has summarized:
A statute is constitutionally void if it is so vague that
persons of common intelligence must necessarily guess at
its meaning and differ as to its application. A vague law
impermissibly delegates basic policy matters to policemen,
judges, and juries for resolution on an ad hoc and
subjective basis, with the attendant dangers of arbitrary
and discriminatory application. However, a statute will not
be deemed unconstitutionally vague if the terms, when
read in context, are sufficiently specific that they are not
subject to arbitrary and discriminatory applications.
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Cotto, 753 A.2d at 220 (citations omitted).
reasoning as follows:
Our state Supreme Court has dealt with this broad issue
-for-vagueness standard, a statute
that persons of common intelligence must necessarily
Commonwealth v. Davidson, 938 A.2d 198, 207 (Pa.
2007) (citations omitted). However, a statute will pass a
vagueness constitutional challenge if the statute
that ordinary people can understand what conduct is
prohibited and in a manner that does not encourage
Id.,(citations omitted). Due process requires that a criminal
statute give fair warning of the conduct it criminalizes. Id.Assembl
sought does not mean that the statute which it in fact
Id., at 207-208
(citations omitted).
int about the [UPL] statute is that it
does not define that very phrase unauthorized practice of
and many others to wonder what is acceptable conduct
and what is criminal conduct.
Our state Sup
a comprehensive statement of what activities comprise the
practice of law, nor have we believed it wise or necessary
to engage in the task of defining what the practice of law
Office of Disciplinary Counsel
v. Marcone, 855 A.2d 654, 660 (Pa. 2004), citing the
leading case on the topic, Shortz v. Farrell, 193 A. 20(Pa. 1937) (attempt to formulate a precise definition of the
practice of law would be more likely to invite criticism than
to ach
have explained what specific activities constitute the
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practice of law on a case-by- Id. While our
focus is on the underlying facts [in this case], the 76 year
old Shortz decision touched upon 3 broad categories of
activity that would constitute the practice of law[:]
(1) the instruction and advising clients in regards to
the law so that they may pursue their affairs and be
informed as to their rights and obligations;
(2) the preparation of documents for clients requiring
familiarity with legal principles beyond the ken of
ordinary laypersons; and
(3) the appearance on behalf of clients before public
tribunals in order that the attorney may assist the
deciding official in the proper interpretation and
enforcement of law.
Shortz, 193 A. at 21.
parameters established by Shortz. As for the personal
injury matter, [Appellant] advised Ms. Caliguire that the
$5,000 settlement was the best that could be obtained.
He reached that conclusion based upon his years of
experience and knowing the likelihood of success if that
monetary resolution was rejected. He also instructed Ms.
Caliguire about the practical problems associated with an
accident which happened in another state. Ms. Caliguire
relied upon that advice. For the Batis matter, [Appellant]
prepared a statement of claim. He used his experience to
filter what pertinent facts needed to be included. He
appeared in the arbitration matter and was the leader of
the Batis team. His team members included expert
witnesses which [Appellant] prepared for their
presentation. At the end of the day, the Court does not
see that a person of ordinary intelligence would continue to
do tasks a lawyer normally does after being told you are
no longer a lawyer.
***
The present facts just do not allow [Appellant] to
overcome [the presumption of constitutionality].
Trial Court Opinion, 8/5/13, at 9-11.
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onclusion that
Appellant failed to meet his burden of establishing that the UPL statute is
largely based on matters outside the record and therefore irrelevant, are
inapposite. Thus,
3. In support of
this issue, Appellant argues specific instances under seven subheadings,
The subheadings raised by Appellant largely concern the conduct and
predisposition against Appellant, and demonstrates why the trial court
-trial motion for recusal. See N.T., 9/4
6/12, at 239. In each of these subheadings Appellant either lists out-of-
errors
See
-30. Appellant does not reference any pertinent
authority to support his claims. Because Appellant has not adequately
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developed any of these claims, we find them waived, and will not consider
them further. Spotz, supra.
Court has explained:
If a party questions the impartiality of a judge, the
proper recourse is a motion for recusal, requesting that the
judge make an independent self-analysis of the ability to
be impartial. If content with that inner examination, the
judge must then decide whether his or her continued
involvement in the case creates an appearance of
impropriety and/or would tend to undermine public
confidence in the judiciary. This assessment is a personal
and unreviewable decision that only the jurist can make.
Once the decision is made, it is final.
This Court presumes judges of the Commonwealth are
honorable, fair and competent, and when confronted with
a recusal demand, have the ability to determine whether
they can rule impartially and without prejudice. The party
who asserts a trial judge must be disqualified bears the
burden or producing evidence establishing bias, prejudice,
or unfairness necessitating recusal, and the decision by a
judge against whom a plea of prejudice is made will not be
disturbed except for an abuse of discretion.
Commonwealth v. Druce, 848 A.2d 104, 108 (Pa. 2004) (citations
omitted).
The trial court explained the context of the recusal motion, and its
reasons for denying it, as follows:
When the Commonwealth ended their evidentiary
presentation, the parties conferred with the Court. During
this discussion, [Appellant] asked that the case be
dismissed. Soon thereafter, [Appellant] moved to recuse
this jurist from further participation. After giving
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[Appellant] the opportunity to argue, the motion was
denied.
***
[Druce, supra] requires [Appellant] produce evidence
do. His oral argument at the time of his motion mimics
what is contained in his [Amended Pa.R.A.P. 1925(b)
Statement] that is the Court believed him to be guilty
and that belief influenced its decision making. The Court
does not run from its thought that [Appellant] was guilty of
expressed when [Appellant] asked the Court to grant his
request for judgment of acquittal.
When faced with such a motion, a trial court must
adhere to a certain standard[:]
A motion for judgment of acquittal challenges the
sufficiency of the evidence to sustain a conviction on
a particular charge, and is granted only in cases in
which the Commonwealth has failed to carry its
burden regarding that charge. The standard we
apply in reviewing the sufficiency of the evidence is
whether reviewing all the evidence admitted at trial
in the light most favorable to the verdict winner,
there is sufficient evidence to enable the factfinder to
find every element of the crime beyond a reasonable
doubt.
Commonwealth v. Hutchinson, 947 A.2d 800, 805-806
(Pa. Super. 2008) (citations and quotations omitted). The
Court complied with this standard. It articulated the
factual inferences it was allowed to draw. It made
reference to the elements of the crime. It commented on
how the facts and the law coalesced in such a way that it
ecide what the true facts were.
Commonwealth v. Neary, 512 A.2d 1226, 1233 (Pa.
not exposed to any comments made by the judge, but
the stre
Trial Court Opinion, 8/5/13, at 32-34.
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After reviewing the trial transcript, we conclude that the trial court did
of his claim, Appellant asserts:
[Appellant] contends that nothing could lend to a
greater question of judicial impartiality [sic], when the trial
judge makes a statement in front of the jury, that he
believes [Appellant] committed the acts that constituted
the violation of which he was accused. That not only sent
a wrong message to the jury, but it also served as a
warning that the judge would never rule favorably on any
dispositive or other important motion brought by
[Appellant] during the trial that could have resulted in the
charges being dismissed.
support his assertion. Assuming that Appellant is referring to the trial
tal,
we note that the comments were made outside the presence of the jury.
See N.T., 9/4-9/6/12, at 233. The fact that Appellant disagrees with the
a basis for recusal. Thus
In his third issue, Appellant argues that the acts for which he was
de minimus to the point where the Trial Court should have
Appe de minimus argument was the basis for his motion for judgment
of acquittal. Once again, Appellant provides argument that is devoid of
citation to the relevant statute or pertinent case authority. Thus, his
undeveloped claim is waived. Spotz, supra.
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Appellant further argues that the trial court mislead him by stating
that the de minimus determination would be made by the jury. According to
Appellant, he tailored his defense strategy given this belief, and was
judgment of acquittal. See -31. Our review of the
court responded:
would I grant a Motion for Judgment of Acquital [sic]? No.
Would I - - would I find this a de minimus infraction? No;
My responses are to procedural questions and
standards, from the standards I have to
prejudice you, whatever appeal you want to make to the
jury. I think I have been very liberal in the course of this
trial, trying to give you as much latitude as possible given
the dyna
to do in this situation other than to allow you to proceed as
requested.
N.T., 9/4-9/6/12, at 237-238.2 In a response to a request by Appellant that
he be permitted to refer to a de minimus defense, the trial court further
Id. at 243. Thus, the
____________________________________________
2
trial.
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court.
In his final claim, Appellant asserts that the trial court erred in refusing
to include his proposed jury instructions in its charge to the jury. According
to Appellant, the trial court further erred in failing to conduct a conference or
proposed by [Appellant], despite the fact that 9 of those had legal authority
that although Appellant asked the trial court to make certain clarifications,
he did not object following the t See N.T.,
9/4-9/6/12, at 374-379. Thus, the claim is waived. See generally
Pa.R.A.P. 302(b); Commonwealth v. Sanchez, 82 A.2d 943 (Pa. Super.
2013).
challenge to part of a jury instruction, we must review the jury charge as a
whole to determine if it is fair and complete. A trial court has wide
discretion in phrasing its jury instructions, and can choose its own words as
long as the law is clearly, adequately, and accurately presented to the jury
for its consideration. The trial court commits an abuse of discretion only
Commonwealth v.
Roser, 914 A.2d 447, 455 (Pa. Super. 2006) (citation omitted).
Our standard for reviewing such a challenge is well-settled:
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In reviewing a challenged jury instruction, we must review
the charge as a whole and not simply isolated portions, to
ascertain whether it fairly conveys the required legal
principles at issue. We are reminded, as well, that a trial
court possesses broad discretion in phrasing its instructions
to the jury and is not limited to using particular language
provided that the law is clearly, adequately and accurately
presented to the jury.
Commonwealth v. Bracey, 831 A.2d 678, 684 (Pa. Super. 2003), appeal
denied
Commonwealth v. Smith, 956 A.2d 1029, 1034-35 (Pa. Super. 2008) (en
banc
instructions meets this standard.
without merit, we affirm the judgment of sentence.
Judgment of sentence affirmed.
Judge Donohue concurs in the result.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 8/26/2014
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