Commonwealth v. Veon

J-A24002-13
2015 Pa. Super. 26
COMMONWEALTH OF PENNSYLVANIA IN THE SUPERIOR COURT OF
PENNSYLVANIA
Appellee
v.
MICHAEL R. VEON
Appellant No. 1698 MDA 2012
Appeal from the Judgment of Sentence November 8, 2012
In the Court of Common Pleas of Dauphin County
Criminal Division at No(s): CP-22-CR-0004274-2009
COMMONWEALTH OF PENNSYLVANIA IN THE SUPERIOR COURT OF
PENNSYLVANIA
Appellee
v.
MICHAEL R. VEON
Appellant No. 2168 MDA 2012
Appeal from the Order Entered November 8, 2012
In the Court of Common Pleas of Dauphin County
Criminal Division at No(s): CP-22-CR-0004274-2009
BEFORE: PANELLA, J., MUNDY, J., PLATT, J.*
OPINION BY PANELLA, J. FILED FEBRUARY 06, 2015
This is the latest in a string of cases involving corrupt political officials.
We consider, among other things, a challenge that Section 1103(a) of the
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*
Retired Senior Judge assigned to the Superior Court.
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Public Official and Employee Ethics Act is unconstitutionally vague, both as
applied and facially, and overbroad. As explained in detail below, we quash
the appeal at 2168 MDA 2012 and affirm the convictions and the order of
restitution at some counts, but vacate and remand for further proceedings
on other counts.
At all relevant times, Appellant, Michael R. Veon, was the sitting
representative for the 14th Legislative District for the Pennsylvania House of
Representatives, located in Beaver County, Pennsylvania. Veon was also the
minority whip, the second most powerful position in the House Democratic
Committee.
In 1991, Veon formed the Beaver Initiative for Growth (“BIG”), a non-
profit corporation. BIG did not have a Board of Directors, but instead
featured two “co-chairs,” Veon and Pennsylvania State Senator Gerald J.
LaValle. BIG was funded exclusively through public monies, primarily
through grants from the Pennsylvania Department of Community and
Economic Development (“DCED”). Eventually, BIG leased office space in
Beaver Falls, Midland, and in Pittsburgh. BIG then sublet large portions of
those offices to Veon’s legislative offices, or, in the case of Pittsburgh,
allowed a research analyst for the House Democratic Committee to utilize
the property.
On May 27, 2009, the Commonwealth filed charges against Veon and
his legislative aide, Anna Marie Peretta-Rosepink, alleging that they had
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executed a scheme that misappropriated public funds awarded to BIG. Veon
and Peretta-Rosepink were tried before the same jury, and on March 5,
2012, the jury found Veon guilty on the following charges:
 1 count of violating 65 Pa.C.S.A. § 1103(a) (conflict of interest;
 2 counts of violating 18 Pa.C.S.A. § 3921(a) (theft by unlawful
taking);
 2 counts of violating 18 Pa.C.S.A. § 3922(a)(1) (theft by
deception);
 2 counts of violating 18 Pa.C.S.A. § 3927(a) (theft by failure to
make required disposition of funds);
 2 counts of violating 18 Pa.C.S.A. § 4113(a) (misapplication of
entrusted property); and
 1 count of violating 18 Pa.C.S.A. § 903 (criminal conspiracy).
The trial court subsequently sentenced Veon to an aggregate sentence of not
less than 12 nor more than 48 months’ imprisonment, to be followed by 48
months of intermediate punishment, and ordered Veon to pay the amount of
$119,000.00 in restitution to the Commonwealth of Pennsylvania.
Veon filed post-sentence motions, which the trial court granted in part
and denied in part. The trial court granted Veon’s request for a hearing on
restitution. The trial court held the hearing and entered an order on
November 8, 2012, fixing restitution at $135,615.00. This timely appeal
followed.
On appeal, Veon raises the following issues:
I. Whether the Pennsylvania Conflict of Interest Law is
unconstitutionally vague on its face, and whether the trial
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court improperly expanded the definition of, and as applied in
this case, “private pecuniary interest” to include intangible
political gain, thereby threatening the constitutional rights of
all elected officials in Pennsylvania.
II. Whether the trial court improperly permitted the
Commonwealth to amend the criminal information after the
close of the Commonwealth’s case, thereby prejudicing
[Veon].
a. Whether the trial court improperly permitted the amendment
of the information to change “utilize” to “staff” related to the
South Side Office;
b. Whether the trial court improperly permitted the de facto
amendment to the information by submitting an improper
verdict slip to the jury, and by improperly answering the
jury’s question, and by permitting the jury to decide which
district office was the subject of the information[.]
III. Whether the [trial] court erred in ordering restitution in this
case in any amount, and whether the amount entered was
otherwise improper.
a. Whether the amount of restitution was rationally related to
the verdict;
b. Whether restitution was improper because it was speculative,
since the [trial] court could not know what legislative offices
were represented by the verdict;
c. Whether the restitution order was excessive because the non-
profit benefitted from the use of the rented space;
d. Whether the restitution order was improper because the
Commonwealth cannot be a victim under the subject criminal
statutes.
IV. Whether the verdict is improper because the Commonwealth
cannot be a victim under the subject criminal statutes.
V. Whether the Commonwealth improperly destroyed witness
interview notes in violation of … [Veon]’s constitutional rights,
and in violation of the Pennsylvania Rules of Criminal
Procedure and the Pennsylvania Rules of Professional
Conduct, thereby depriving the [Appellant] of a fair trial.
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VI. Whether the evidence adduced at trial was insufficient as a
matter of law to convict … [Veon] of the charges for which he
was found guilty.
Appellant’s Brief at 6-7.
Before we address the issues raised on appeal, we begin with two
preliminary matters. First, the trial court maintains that Veon has waived all
of his issues on appeal by failing to file a timely statement of matters
complained of on appeal pursuant to Rule 1925(b) of our Rules of Appellate
Procedure. Waiver is no longer the remedy under such situations. Where
the trial court does not address the issues raised in an untimely 1925(b)
statement, we remand to allow the trial court an opportunity to do so. See
Commonwealth v. Thompson, 39 A.3d 335, 340 (Pa. Super. 2012). On
the other hand, where, as here, the trial court has addressed the issues
raised in an untimely Rule 1925(b) statement, we need not remand and may
address the issues on their merits. See id.
Second, as a cautionary move, Veon appealed from both the judgment
of sentence and from the order amending the amount of restitution. An
award of restitution is a sentence. See Commonwealth v. Kinnan, 71
A.3d 983, 986 (Pa. Super. 2013). Here, restitution was imposed as a direct
sentence. See 18 Pa.C.S.A. § 1106(a).
“[A] direct appeal in a criminal case can only lie from the judgment of
sentence.” Commonwealth v. Lawrence, 99 A.3d 116, 117 n.1 (Pa.
Super. 2014). The November 8, 2012 order only amended the judgment of
sentence of restitution. Accordingly, we quash the appeal at 2168 MDA
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2012. We have amended the caption of the appeal at 1698 MDA 2012 to
reflect the correct date for the amended judgment of sentence. We proceed
to the issues raised on appeal.
The statute at issue is Section 1103 of the Public Official and Employee
Ethics Act entitled, Restricted Activities. Specifically, subsection (a), which
case law refers to as the conflict of interest statute. See 65 Pa.C.S.A. §
1103(a) Conflict of interest. Veon argues that this statute is void for
unconstitutional vagueness and overbreadth. We disagree.
We presume that acts passed by the General Assembly are
constitutional. See Lawrence, 116 A.3d at 118. “[A] statute will not be
found unconstitutional unless it clearly, palpably, and plainly violates the
Constitution. If there is any doubt as to whether a challenger has met this
high burden, then we will resolve that doubt in favor of the statute’s
constitutionality.” Id. (citation omitted). The constitutionality of a statute
presents a question of law for which our standard of review is de novo and
our scope of review is plenary. See id.
We begin with Veon’s claim that the statute is unconstitutionally
vague. In order to avoid due process concerns, a statute must not be
vague. See Commonwealth v. Habay, 934 A.2d 732, 737 (Pa. Super.
2007). “The due process standards of the Federal and Pennsylvania
Constitutions are identical.” Commonwealth v. Scott, 878 A.2d 874, 878
n.4 (Pa. Super. 2005) (citations omitted). The void-for-vagueness doctrine
“requires that a penal statute define the criminal offense with sufficient
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definiteness that ordinary people can understand what conduct is prohibited
and in a manner that does not encourage arbitrary and discriminatory
enforcement.” Commonwealth v. Duda, 923 A.2d 1138, 1147 (Pa. 2007)
(citations omitted). Thus, “a penal statute must set forth a crime with
sufficient definiteness that an ordinary person can understand and predict
what conduct is prohibited. The law must provide reasonable standards
which people can use to gauge the legality of their contemplated, future
behavior.” Habay, 934 A.2d at 737 (citations omitted). This specificity
requirement does not require a statute to “detail criminal conduct with utter
precision,” as these competing principles are “rooted in a rough idea of
fairness.” Id. (citations omitted). Accordingly, “statutes may be general
enough to embrace a range of human conduct as long as they speak fair
warning about what behavior is unlawful.” Id. (citations omitted).
We also note that there are two types of vagueness challenges, both of
which Veon asserts in this appeal: facial vagueness and vagueness as
applied.
First, a challenge of facial vagueness asserts that the statute in
question is vague when measured against any conduct which the
statute arguably embraces. Second, a claim that a statute is
vague as applied contends the law is vague with regard to the
particular conduct of the individual challenging the statute.
For a court to entertain challenges of facial vagueness, the
claims must involve First Amendment issues. When a case does
not implicate First Amendment matters, vagueness challenges
are to be evaluated in light of the facts at hand—that is, the
statute is to be reviewed as applied to the defendant’s particular
conduct.
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Id., at 738 (internal citations omitted).
The conflict of interest statute states, “[n]o public official or public
employee shall engage in conduct that constitutes a conflict of interest.” 65
Pa.C.S.A. § 1103(a). The statute defines “conflict of interest” as:
Use by a public official or public employee of the authority of his
office or employment or any confidential information received
through his holding public office or employment for the private
pecuniary benefit of himself, a member of his immediate family
or a business with which he or a member of his immediate family
is associated. The term does not include an action having a de
minimis economic impact or which affects to the same degree a
class consisting of the general public or a subclass consisting of
an industry, occupation or other group which includes the public
official or public employee, a member of his immediate family or
a business with which he or a member of his immediate family is
associated.
65 Pa.C.S.A. § 1102. Definitions.
Veon first claims the statute is vague on its face as it fails to define the
conduct prohibited. He maintains that the statute utilizes general,
conclusory terms. Thus, he maintains the conflict of interest statute extends
beyond illegal activity and encompasses constitutionally protected activity—
his right, as well as public officials’ rights as a whole, to free speech. In
support, Veon cites to a United States Supreme Court case, Skilling v.
United States, 561 U.S. 358 (2010), in which the appellant there asserted
that the federal honest-services statute, 18 U.S.C. § 1346, was
unconstitutionally vague. Veon claims Skilling provides “direct and clear
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guidance when evaluating Pennsylvania’s very similar conflict of interest
statute.” Appellant’s Brief at 17.
The Commonwealth disagrees. It argues that the conflict of interest
statute is not vague on its face. In support, it cites precedent from this
Court wherein a panel determined that the conflict of interest statute was
not unconstitutionally vague. See Commonwealth v. Habay, 934 A.2d
732 (Pa. Super. 2007). Further, the Commonwealth claims Skilling is
inapposite since the federal honest-services statute differs significantly from
the Pennsylvania conflict of interest statute.
We can immediately dispense of Veon’s reliance on Skilling. This
exact argument was rejected in Commonwealth v. Feese, 79 A.3d 1101,
1128 (Pa. Super. 2013).
We proceed to discuss Veon’s argument that the statute is facially
vague. In Habay, appellant was a member of the Pennsylvania House of
Representatives who directed state-paid employees under his authority to
conduct campaign and/or fundraising-related work, during state-paid time,
for his personal benefit, and was convicted of violation of the conflict of
interest statute. On appeal, he raised, among other things, an as applied
challenge to the statute. The panel noted, however, that “even if” he had
raised a facial challenge “it is patently clear that the statute at hand is not
vague on its face.” 934 A.2d at 738. As the panel explained, the statute is
not facially vague because it specifically defines the conduct prohibited:
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There is nothing unclear about the concept of using the authority
of an office to obtain private pecuniary benefit. The statute
prohibits people who hold public offices from exercising the
power of those offices in order to secure financially related
personal gain. … Given the straightforward language of the
statute at hand, we find it sets forth the crime of conflict of
interest with sufficient definiteness that Appellant, and indeed
any ordinary person, could understand and predict what conduct
is prohibited. It speaks fair warning of the proscribed conduct.
Id. This language is admittedly dicta as it pertains to a facial challenge, but
we fully agree with the panel that it forecloses not only an as applied
challenge, but also a facial challenge.
In essence, the statute focuses on the public resources granted to
public officials, and draws a distinct line between how an official may utilize
those resources. On one hand, it is permissible to use these resources for
government-related purposes. On the other hand, it is wholly impermissible
to utilize public resources to provide a pecuniary benefit to the office holder
or a member of their family.
Further, as previously noted, a facial vagueness challenge to a statute
must relate to First Amendment issues. In developing this argument,
however, Veon fails to set forth a cognizable argument as to why the
statute, on its face, infringes upon his First Amendment right to free speech.
The conflict of interest statute does not affect how a public official
spends his own money; it affects only how the official spends public funds.
The First Amendment rights of public officials are limited by the
government’s interest in ensuring efficient provision of government services.
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See Pickering v. Board of Educ., 391 U.S. 563, 568 (1968). Veon cannot
establish that a public official’s use of public funds for personal benefit
constitutes protected First Amendment activity. That is simply not protected
speech.
In fact, we have rejected a challenge of facial vagueness where a
Pennsylvania State Senator argued that using state employees to conduct
political campaign activities on state time with state resources constitutes
constitutionally protected free speech rights. See Commonwealth v. Orie,
88 A.3d 983, 1026 (Pa. Super. 2014). There, the panel found that the
conflict of interest statute “places no restrictions on a public official’s federal
or state protected rights of expression and association, but only prohibits
officials from using state-funded resources for non-de minimis private
pecuniary gain.” Id.
Accordingly, Veon has failed to demonstrate that the statute affects a
public official’s First Amendment rights, let alone that it is unconstitutionally
vague on its face. Next, we turn to Veon’s argument that the statute is
unconstitutionally vague as applied to his circumstances.
The trial court permitted the Commonwealth to argue that the
statutory term “private pecuniary gain” includes “intangible political gain”
such as “the utilization of misappropriated funds to garner favorable
publicity, to obtain free publicity, to enhance standing in the community, or
to otherwise achieve political gain.” Trial Court Opinion, 1/23/13, at 5
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(citing Keller v. State Ethics Commission, 860 A.2d 650 (Pa. Cmwlth.
2004)). Veon focuses on the trial court’s alleged extension of the statutory
term “private pecuniary gain” to include various “intangible political benefits”
as improper. He argues that he received no gain whatsoever. But political
gain costs money. The blatant and substantial “intangible political gain,” as
described in this case, constitutes private pecuniary gain—the
misappropriated money inured to Veon’s benefit.1 Veon’s scheme is set
forth in detail below.
As a member of the House, Veon was entitled to $20,000.00 annually
to cover the expenses of operating his district office. See N.T., Trial,
2/22/12, at 271. In addition, he was entitled to spend $2,300.00 monthly
on office rent and vehicle costs, with office rent limited to no more than
$1,650.00 per month. See id., at 271-72. These allotments were taxpayer-
funded. See id., at 308. If a member of the House did not spend the
allotted money for rent costs, the money could not be used for any other
purposes. See id., at 271-72. On the other hand, if the House member
spent more than $1,650.00 per month on rent, the remainder would have to
be paid from the $20,000.00 annual allotment. See id., at 291.
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1
Certainly, a de minimis private pecuniary gain, for example, when an
elected official uses an expense account to attend a county fair, would not
violate the statute. We stress that it must be a non-de minimis private
pecuniary gain. See Orie, 88 A.3d at 1026.
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While it was possible for a House member to exceed their allotment by
requesting a discretionary disbursement from the Democratic Minority
Leader, such a request had its drawbacks. Within the Democratic Caucus,
House members took issue with rent disparities between members. See
N.T., Trial, 2/24/12, at 60-61. The Democratic Minority Leader received “a
lot of complaints … on a lot of occasions” regarding rent disparities. Id.
Furthermore, any money disbursed pursuant to such a request was a matter
of public record. See id., at 61. “[S]ome members just didn’t want to have
the political problem of a reporter finding out they were spending way above
their allotted amount of money.” Id.
Veon’s rent payments for his offices never exceeded $1,500.00 per
month. See N.T., 2/22/12, at 296. However, he never leased his legislative
offices directly from a landlord. Veon’s Beaver Falls office was sublet from
BIG. See N.T., Trial, 2/16/12, at 104. BIG paid $2,900.00 per month in
rent to the landlord, and received $1,500.00 per month from Veon’s House
expense account. See id. BIG occupied only approximately 20% of the
Midland office. See id., at 101-102; Commonwealth’s Exhibit 5 (floor plan).
As noted previously, Veon was co-chair of BIG. See N.T. 2/16/12, at
82. BIG was originally created as a vehicle to attract and implement a
variety of economic and community development throughout Beaver County.
See id., at 75. Veon served as co-chair alongside State Senator Gerald
LaValle; however, testimony established that LaValle’s position was akin to a
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figurehead, and he was not directly involved in the organization’s operations.
See id., at 83; N.T. 2/21/12, at 286-88. On the other hand, Veon was
intimately involved with the day-to-day operations of the nonprofit and was
“fiscal director” of BIG. See N.T. 2/16/12, at 85.
Veon’s use of BIG as a means to his own personal ends was evident
from the testimony of two former BIG executive directors: John Gallo and
Thomas Woodske. John Gallo served as BIG executive director from 1999 to
2003. See N.T., 2/16/12, at 81, 218.
Shortly after his appointment to executive director, Gallo discovered
that Peretta-Rosepink, Veon’s co-defendant, was appointed as BIG’s fiscal
director. See N.T. 2/16/12, at 83. Peretta-Rosepink primarily worked in the
legislative office, but would occasionally handle payroll matters, as well as
the payment of utilities. See id., at 86. It was Peretta-Rosepink who
secured rental office space in an old bank in Beaver Falls to use for both a
legislative office and for BIG. See id., at 95. Peretta-Rosepink gave the
lease to Gallo to sign on behalf of BIG; Gallo was not involved with
negotiating the lease with the landlord, nor had he ever toured the property.
See id., at 95-97.
The circumstances surrounding the Midland office were even less
transparent. Due to a family emergency, Gallo was out of work for most of
February 2003, and returned to work full-time in late February or early
March. See id., at 129-30. While Gallo was away, Peretta-Rosepink
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obtained the BIG checkbook from a BIG employee. See id., at 132. Upon
returning, Gallo noticed a check written by Peretta-Rosepink to Rudy
Presutti, whom Gallo did not know. See id., at 162-63. Gallo questioned
Peretta-Rosepink about the check, and she responded that the check was for
rent payment for the new BIG office in Midland. See id., at 163. This was
the first time Gallo heard about a BIG office in Midland. See id.
Thomas Woodske succeeded John Gallo in 2003. See N.T.,
2/22/2012, at 23. He testified that Veon’s style “was not consultative at all.
He dominated the organization and ran it as he saw fit.” Id., at 12. Veon
and Peretta-Rosepink consulted Woodske on two initial hires, but afterwards,
Woodske was not consulted on four subsequent hires. See N.T. 2/21/2012,
at 197-98. Woodske was never consulted about the rental of the South Side
Pittsburgh Office. See id., at 11-12. Woodske was also never consulted
regarding the lease for the Beaver Falls district office. See id., at 207-08.
Instead, either Veon or Peretta-Rosepink would handle the negotiation of the
leases. See id., at 208.
Veon was responsible for obtaining the public funding for BIG. See
N.T. 2/16/12, at 75. In order to obtain the funds, Veon would have to apply
for grants from the DCED. See id., at 75. Upon receipt of the grant
monies, Gallo and Woodske had no idea that Veon had obtained rental
properties in Pittsburgh’s South Side or in Midland. See id., at 95-97; N.T.
2/22/12, at 11-12. Though these new offices were obtained for BIG, the
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majority of the space was actually used for Veon’s legislative offices. See
N.T. 2/16/12, at 96-116. There were no signs indicating that BIG occupied
those offices and those who wished to visit BIG employees needed to walk
through the legislative office. See id.
The funds from BIG made up the difference in rent in each of the
offices that exceeded the allotment Veon was allowed from the
Commonwealth. See N.T. 2/24/12, at 105-06; N.T. 2/27/12, at 157-64.
The public monies provided to BIG through the DCED as a result of grant
applications by Veon, were then used to pay for Veon’s additional legislative
offices. Therefore, the money that should have been spent for BIG was
otherwise spent on securing Veon additional legislative offices.
Veon was certainly placed on notice that the substantial expenditure of
public funds, all to enhance his political image, was a violation of the statute.
He deliberately used funds obtained for the purposes of BIG to rent space for
his legislative offices. As argued by the Commonwealth, Veon was able to
maintain the façade of a thrifty public servant, who took less than his
monthly rental allotment, while enjoying facilities superior to those he could
have obtained by merely spending his allotment, all while not expending any
personal funds. Veon treated BIG as a personal bank account from which he
could pursue his own ends. All of this was for his benefit. We therefore find
that the conflict of interest statute is not vague as applied to the facts of this
case.
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Veon also contends that the conflict of interest statute is
unconstitutionally overbroad. A statute is unconstitutionally overbroad, “if it
punishes lawful constitutionally protected activity as well as illegal activity.”
Commonwealth v. Davidson, 938 A.2d 198, 208 (Pa. 2007). In Habay,
we rejected the same overbroad argument that Veon advances in this
appeal. See 934 A.2d at 739.
Veon next claims the trial court abused its discretion by permitting the
Commonwealth, after the close of its case, to amend the word “utilized” to
“staffed” in Counts 5, 9, 13, and 17, of the criminal information, which
involve theft-related offenses relating to the South Side Pittsburgh Office.2
Veon contends this amendment changed the factual scenario supporting the
underlying charges, thus prejudicing him by negatively affecting his ability to
mount an effective defense. We disagree.
The criminal information “is a formal written statement charging the
commission of an offense signed and presented to the court by the attorney
for the Commonwealth after a defendant is held for court….” Pa.R.Crim.P.
103. The information apprises the defendant of the filed charges so he can
prepare a defense. See Commonwealth v. Sinclair, 897 A.2d 1218, 1223
(Pa. Super. 2006).
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2
Specifically, Veon was found guilty under those charges for theft by
unlawful taking, theft by deception, theft by failure to make required
deposit, and misapplication of entrusted property.
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Pennsylvania Rule of Criminal Procedure 564 permits the amendment
of the information “when there is a defect in form, the description of the
offense(s), the description of any person or any property, or the date
charged, provided the information as amended does not charge an additional
or different offense.” Pa.R.Crim.P. 564. “[T]he purpose of Rule 564 is to
ensure that a defendant is fully apprised of the charges, and to avoid
prejudice by prohibiting the last minute addition of alleged criminal acts of
which the defendant is uninformed.” Sinclair, 897 A.2d at 1221 (citation
omitted). A court must look to see
[w]hether the crimes specified in the original indictment or
information involve the same basic elements and evolved out of
the same factual situation as the crimes specified in the
amended indictment or information. If so, then the defendant is
deemed to have been placed on notice regarding his alleged
criminal conduct. If, however, the amended provision alleges a
different set of events, or the elements or defenses to the
amended crime are materially different from the elements or
defenses to the crime originally charged, such that the defendant
would be prejudiced by the change, then the amendment is not
permitted.
Id. (citation omitted).
Relief is only proper where the amendment prejudices the defendant.
See id., at 1223. A court must consider a number of factors in determining
whether an amendment results in prejudice:
(1) whether the amendment changes the factual scenario
supporting the charges; (2) whether the amendment adds new
facts previously unknown to the defendant; (3) whether the
entire factual scenario was developed during a preliminary
hearing; (4) whether the description of the charges changed
with the amendment; (5) whether a change in defense strategy
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was necessitated by the amendment; and (6) whether the timing
of the Commonwealth’s request for amendment allowed for
ample notice and preparation.
Id. (citation omitted).
The change of the word “utilized” to “staffed” in this case did not
prejudice Veon. The trial court described its decision to permit the
amendment by stating:
In the case at bar, the [trial court] permitted the Commonwealth
to amend the description of certain offenses contained within the
original Criminal Information, specifically to change the term
“utilized” to “staffed”. We determined that this amendment
would not alter the current factual scenario nor would it add any
new facts, include any additional charges or offenses, or modify
the offenses for which Mr. Veon had been charged. Rather, it
clarified the description of the offenses included in the original
Criminal Information, of which Mr. Veon was acutely aware, by
using language which, we believe, had a substantially similar, if
not the same, meaning. Accordingly, we found that Mr. Veon’s
defense strategy would not be affected by the change and, thus,
he was not prejudiced by the amendment.
Trial Court Opinion, 1/23/13, at 4 (footnote omitted).
This is eminently reasonable. We see no reason to disturb the trial
court’s decision to permit the amendment of the criminal information. The
two terms need not be interchangeable, as Veon suggests, to permit
amendment of the criminal information. Instead, as the trial court stated,
utilization of the term “staffed” with respect to the South Side Pittsburgh
Office merely clarified the underlying description of the theft-related
offenses. It is reasonable to conclude that Veon, as co-chair of BIG and
heavily involved in its day-to-day operations, could reasonably anticipate
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that the term “utilizing” in this manner included the act of staffing the office
space with BIG employees. The amendment did not change or add facts to
the description of the charges. If anything, this amendment narrowed the
conduct for which Veon could be convicted. Consequently, we cannot
conclude that Veon would have had to modify his defense strategy pursuant
to the amendment. Rather, we find that the trial court’s decision to amend
the criminal complaint was not an abuse of discretion.
Veon next contends that the trial court erred in permitting a de facto
modification of the information pursuant to the phrasing on the verdict slip
given to the jury. The amended criminal information states, in relevant part,
that “[Veon] directed and/or approved the payment of public funds in the
form of Beaver Initiative for Growth grant monies for the payment of rent of
a legislative district office….” Amended Information, 8/16/10, at 1.3
(emphasis added). In contrast, testimony at trial established that Veon used
BIG funds to have offices—space in Beaver Falls, Midland, and Pittsburgh.
The verdict slip given to the jury identifies the bases of counts 1, 3, 7, 11,
15, and 19 as “Rent/legislative district office.” Veon objected to the verdict
slip on those counts as they implicated multiple legislative offices while the
information indicated only one legislative office. The trial court overruled the
exception and did not modify the verdict slip.
____________________________________________
3
We note that while different language appears in counts 1, 3, 7, 11, 15,
19, each of the counts refer to “a legislative office.”
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After retiring to the deliberation room, the jury requested a
clarification of the jury slip: “In regards to all counts stating (rent/legislative
district office), does that refer to Midland, Beaver Falls, or both?” Veon
renewed his objection to the variance between the information and the
verdict slip. The trial court overruled the objection and instructed the jury
that his answer to their question was “either, both or neither, as you may
find from the evidence presented.”
Veon argues that this de facto amendment changed the factual
scenario in violation of all six factors for examining prejudice as mentioned
above. See Sinclair, 897 A.2d at 1223. We agree with the trial court that
Veon’s focus on the distinction between a single or multiple offices is a red
herring:
The unlawfully diverted funds (i.e. the “BIG” grant monies) from
which those offense(s) arose were used to make monthly rental
payments based upon which Mr. Veon received legislative district
office space in both Beaver Falls and Midland. Thus, any
distinction between the two was, we believe, immaterial so long
as the jury found that Mr. Veon directed, authorized and/or
approved the use of those misappropriated funds for his own
political purposes.
Trial Court Opinion, 1/23/13, at 4.
The essence of the various charges at issue was that Veon had used
BIG funds for his personal benefit. There was no factual dispute over
whether BIG funds had been expended in the relevant transactions. The
only dispute was whether the BIG funds had been expended for appropriate
purposes, or whether they had been used for Veon’s own personal gain. The
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distinction between the offices was not relevant, at all, to the nature of the
charges or to any possible defense.
We therefore find that the variance between the amended criminal
information and the verdict slip, as clarified by the trial court, did not
prejudice Veon.
Veon next argues that the trial court erred in ordering restitution as
the Commonwealth cannot be a victim for purposes of the restitution
statute. In support, he relies on the plain text of the statute, as well as
Commonwealth v. Brown, 981 A.2d 893 (Pa. 2009), which provided
further clarification of the term “victim” for purposes of the restitution
statute.
“[R]estitution is the requirement that the criminal offender repay, as a
condition of his sentence, the victim or society, in money or services.” Id.,
at 895 (footnote omitted). It acts to rehabilitate the offender “by impressing
upon him or her that his criminal conduct caused the victim’s loss or
personal injury and that it is his responsibility to repair the loss or injury as
far as possible.” Id. (citation omitted). “[I]t is highly favored in the law and
encouraged so that the criminal will understand the egregiousness of his or
her conduct, be deterred from repeating the conduct, and be encouraged to
live in a responsible way.” Id. (citation omitted).
Section 1106 of the Crimes Code mandates that restitution be paid
“[u]pon conviction for any crime wherein property has been stolen,
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converted or otherwise unlawfully obtained….” 18 Pa.C.S.A. § 1106(a). The
statute further sets forth the individuals and entities entitled to restitution:
(A) the victim; … (C) “[a]ny other government agency which has provided
reimbursement to the victim as a result of the defendant’s criminal
conduct….” 18 Pa.C.S.A. § 1106(c)(1)(ii)(A, C).
Prior to 1995, the statutory language of Section 1106 did not include
Commonwealth entities under the definition of “victim.” See
Commonwealth v. Runion, 662 A.2d 617, 621 (Pa. 1995) (“[U]nless or
until the legislature enacts language to the contrary, we must find that the
Department of Public Welfare, as a Commonwealth entity, is expressly
excluded from the definition of a ‘person,’ and as such may not be
considered a victim under 18 Pa.C.S. § 1106.”). Subsequently, the
legislature amended Section 1106 in 1995 and again in 1998, broadening
the class of entities eligible to receive restitution to include the Crime
Victim’s Compensation Board, other government agencies, and insurance
companies. See 18 Pa.C.S.A. § 1106(c)(1)(ii)(A-D). While the legislature
broadened the definition of those eligible for restitution to include
government agencies, the language utilized in the amendments did not
include all government agencies. This limitation is evident in our Supreme
Court’s analysis of Section 1106 in Brown.
In Brown, the trial court ordered the defendant to pay restitution to
Medicare, which had paid a part of the amount the crime victim owed to a
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hospital that had treated the victim’s injuries. The issue before the Supreme
Court in Brown was whether Medicare was entitled to restitution from
defendant. Looking at the plain language of the statute, the Court
concluded that while it appeared that the legislature sought to include
government agencies within Section 1106, it was not clear exactly which
agencies qualified. Thus, the Court turned to established principles of
statutory construction, focusing heavily on the legislative history of Section
1106, to determine that the 1995 and 1998 amendments “implicitly
broadened the class of entities eligible for restitution to include government
agencies….” 981 A.2d at 899-900. Next, the Court sought to determine
exactly which agencies were encompassed by these amendments.
Brown argued that restitution was only available to those government
agencies that paid victims directly. Thus, since Medicare paid the victim’s
medical providers and not the victim directly, Brown contended that it was
not entitled to restitution. The Court disagreed, stating, “to find restitution
available only to those entities which directly paid the victim would place
form over substance and ignore the realities of medical reimbursement.”
Id., at 901.
The Court acknowledged that the term “reimbursement” was not
defined in the statute, “but as evinced by the broadened Section 1106, the
General Assembly not only expressed an increased focus on the importance
of mandatory restitution, it believed that criminal offenders should both
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provide restitution to the victim directly, and to entities incurring expenses
on the victim’s behalf.” Id., at 900. Further, the Court considered the dual
purposes of restitution: rehabilitation and deterrence.
[T]he main purpose behind the statute is rehabilitation of the
offender by impressing upon him that this criminal conduct
caused the victim’s loss or personal injury and that it is his
responsibility to repair the loss or injury as far as possible, and
that compensation to the victim is only secondary. Furthermore,
the goals of restitution include the hope that the criminal will be
deterred from repeating the conduct and encouraged to live in a
responsible way.
Id., at 901 (citations omitted). Finally, the Court concluded that allowing
those entities that directly and indirectly compensate the victim of a crime to
be eligible for restitution would be consistent with the goals of rehabilitation
and deterrence, as well as consistent with the goal to be obtained by the
amended statute.
We conclude that the Commonwealth can be a victim under this
statute. As noted in Brown, the General Assembly intended to have the
restitution statute serve as deterrence for criminals. It would therefore be
contrary to the statute’s purpose and the General Assembly’s intent—not to
mention common sense—to have a defendant directly steal from the
Commonwealth, specifically the DCED, and not be liable for restitution.
Limiting restitution sentences to instances where the Commonwealth only
reimburses a third party victim would otherwise encourage criminals to steal
from the Commonwealth. As the Court expressed in Brown, to hold
otherwise would place form over substance and ignore the realities and
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purpose of the statute. Therefore, we must conclude that the
Commonwealth is a victim to which an order of restitution can be paid when
the Commonwealth is the direct victim of a crime.
We now turn to whether the amount of restitution ordered by the trial
court was proper. Veon contends that the amount of restitution ordered by
the trial court was both speculative and excessive. Veon’s claim that the
order of restitution is unsupported by the record challenges the legality of
the sentence. See Commonwealth v. Atanasio, 997 A.2d 1181, 1183
(Pa. Super. 2010). “[T]he determination as to whether the trial court
imposed an illegal sentence is a question of law; our standard of review in
cases dealing with questions of law is plenary.” Id. (citation omitted).
A court must be guided by the following when computing restitution:
Although restitution does not seek, by its essential nature, the
compensation of the victim, the dollar value of the injury
suffered by the victim as a result of the crime assists the court in
calculating the appropriate amount of restitution. A restitution
award must not exceed the victim’s losses. A sentencing court
must consider the victim’s injuries, the victim’s request as
presented by the district attorney and such other matters as the
court deems appropriate. The court must also ensure that the
record contains the factual basis for the appropriate amount of
restitution. In that way, the record will support the sentence.
Commonwealth v. Plegler, 934 A.2d 715, 720 (Pa. Super. 2007) (citations
omitted).
Turning to the merits, we find that the trial court’s order of restitution
in the amount of $135,615.00 is supported by the record. The amount of
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the restitution was based on the rent payments from each of Veon’s offices
minus the amount of money the comptroller’s office deposited into BIG.
Despite the record’s support for the amount of the restitution,
however, the causal connection between the jury’s guilty verdict and the
amount of restitution is missing. While the jury found Veon guilty on the
counts regarding the rent of the legislative offices, the guilty verdict
indicated that the jury found Veon guilty of stealing from either legislative
office, both legislative offices, or neither office. In regards to Counts 1, 3, 7,
11, 15, and 19, the record does not specify which legislative office Veon
stole from, nor can it be assumed or speculated by the trial court that the
jury convicted Veon of stealing from both offices (Midland or Beaver Falls).
Therefore, the trial court could not properly determine which office the jury
had in mind when it issued its guilty verdict. Therefore, the trial court had
no basis for determining the causal connection of the damages that
stemmed from his guilty conduct concerning those above-mentioned guilty
counts.
Our resolution of this issue does not contradict our earlier discussion of
the verdict slip. While the location of the offices was irrelevant to whether
Veon committed the crimes charged, the specific method of calculating
restitution chosen by the trial court relies directly upon where the stolen
funds were spent. Since the verdict slip, as clarified by the trial court,
equally supports jury findings that Veon spent the stolen funds on only the
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Beaver Falls office, only the Midland office, or both, picking any one of these
three options constitutes mere speculation. Accordingly, we conclude that
the record before us does not support a finding of a direct causal relationship
between the amounts paid for rent at each office and the jury’s verdict.
However, there is a causal connection between the restitution amount
regarding counts 5, 9, 13, and 17. This is because the jury found Veon guilty
for stealing funds with respect to the Pittsburgh office, and thus, there is a
causal connection between the guilty verdict on those charges and the
restitution amount.
Therefore, the trial court erred in its order of sentence of restitution in
the amount of $135,615.00. The amount of restitution imposed upon Veon
as a result of counts 1, 3, 7, 11, 15, and 19 must be vacated as there is no
causal connection between the guilty verdicts and the losses sustained by
the victim. We affirm the amount of restitution imposed upon Veon
regarding counts 5, 9, 13, and 17. Upon remand, the trial court is to
determine if there is an appropriate method to calculate restitution in light of
our decision regarding counts 1, 3, 7, 11, 15, and 19.
Veon also argues that the Commonwealth cannot be a victim under 18
Pa.C.S.A. § 3921, Theft by unlawful taking or disposition, 18 Pa.C.S.A. §
3922, Theft by deception, and 18 Pa.C.S.A. § 3927, Theft by failure to make
required disposition of funds received.
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Recently, this Court decided the exact argument posed by Veon
concerning whether the Commonwealth could be victim under 18 Pa.C.S.A. §
3921 and § 3922 in Commonwealth v. Stetler, 95 A.3d 864 (Pa. Super.
2014), wherein the panel adopted the trial court’s opinion in the matter as
its own. See id., at 882. Therefore, we affirm Veon’s guilty verdict on the
charges of theft by deception and theft by unlawful taking.
We next address Veon’s challenge to the guilty verdict on the charges
of theft by failure to make required disposition funds received. That crime is
defined as follows:
(a) Offense defined.--A person who obtains property upon
agreement, or subject to a known legal obligation, to make
specified payments or other disposition, whether from such
property or its proceeds or from his own property to be reserved
in equivalent amount, is guilty of theft if he intentionally deals
with the property obtained as his own and fails to make the
required payment or disposition. The foregoing applies
notwithstanding that it may be impossible to identify particular
property as belonging to the victim at the time of the failure of
the actor to make the required payment or disposition.
18 Pa.C.S.A. § 3927(a).
Veon argues that under this provision of the Crimes Code the
Commonwealth cannot be a victim since the statute does not specify if the
victim must be a person or government entity. We reject this argument.
Section 3927(a) requires a person who accepts money or property of
another pursuant to an agreement to meet the obligations of the agreement.
See Commonwealth v. Wood, 637 A.2d 1335, 1344 (Pa. Super. 1994).
An agent who has received funds subject to an obligation to make a required
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payment may commingle funds if he so chooses without penalty as long as
the obligation for which the money or property is entrusted is met in a
timely fashion. See Commonwealth v. Fritz, 470 A.2d 1364, 1366 (Pa.
Super. 1990). “The language of the statute, that a person is guilty of theft
by failure to make required disposition of funds if he ‘deals with property as
his own,’ does not require that the defendant actually use the property of
another.” Wood, 637 A.2d at 1344 (emphasis added). The word “deals”
means that the defendant took the property designed for a specific use and
used it as if it were his or her own property. See id.
The case law indicates that the emphasis of the statute is centered on
the actions of the defendant—not the status of the victim. It is clear that
the language of Section 3927(a) requires convictions of any actor that uses
property of another inappropriately and fails to perform according to the
legal obligation. That is exactly what Veon did here. Thus, his argument
fails.
Next, Veon alleges the prosecution improperly destroyed witness
interview notes thus depriving him of a fair trial. Further, he claims that
such destruction violated a litany of constitutional rights, rules of criminal
procedure, and rules of professional conduct. We begin by noting that Veon
has failed to properly present this issue for review by improperly
incorporating his argument by reference. Specifically, Veon states, “[t]he
specific issue of destruction of notes by the prosecutors in Bonusgate
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prosecutions has been raised by the defense in the matter of
Commonwealth v. Feese at Superior Court No. 338 MDA 2012.”
Appellant’s Brief at 57. Veon includes Feese’s brief in the Reproduced
Record.
Veon’s argument fails for several reasons. As it turns out, this issue
did not provide relief for Feese. See Commonwealth v. Feese, 79 A.3d
1101, 1105-1115 (Pa. Super. 2013). Furthermore, this issue is waived as
Rule 2119(a) of the Rules of Appellate Procedure requires a properly
developed argument for each question presented. This requires, among
other things, a discussion of and citation to authorities in the appellate brief
and “the principle for which they are cited.” See Pa.R.A.P. 2119(a), (b).
Failure to conform to the Rules of Appellate Procedure results in waiver of
the underlying issue. See Commonwealth v. Buterbaugh, 91 A.3d 1247,
1262 (Pa. Super. 2014) (en banc). Incorporation by reference does not
constitute a properly developed claim.
Our Supreme Court has categorically rejected incorporation by
reference as a means of presenting an issue. The Court has called the
practice “unacceptable” and explained, “our appellate rules do not allow
incorporation by reference of arguments contained in briefs filed with other
tribunals, or briefs attached as appendices, as a substitute for the proper
presentation of arguments in the body of the appellate brief.”
Commonwealth v. Briggs, 12 A.3d 291, 342-343 (Pa. 2011) (citations
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omitted). The allowance of incorporation by reference “would enable
wholesale circumvention of our appellate rules which set forth the
fundamental requirements every appellate brief must meet.” Id., at 343
(citations omitted). Accordingly, we find this issue waived.4
Lastly, Veon argues that the Commonwealth failed to present sufficient
evidence to sustain his convictions. Before turning to the merits of Veon’s
claim, however, we must determine if he preserved this claim.
In order to preserve a challenge to the sufficiency of the evidence on
appeal, the appellant’s Rule 1925(b) statement must state with specificity
the element or elements of the crime upon which the appellant alleges the
evidence was insufficient. See Commonwealth v. Garland, 63 A.3d 339,
344 (Pa. Super. 2013); Commonwealth v. Gibbs, 981 A.2d 274, 281 (Pa.
Super. 2009). “Such specificity is of particular importance in cases, where,
as here, the appellant was convicted of multiple crimes each of which
contains numerous elements that the Commonwealth must prove beyond a
reasonable doubt.” Garland, 63 A.3d at 344 (quoting Gibbs, 981 A.2d at
281). In Garland, the appellant’s Rule 1925(b) statement simply stated,
____________________________________________
4
Veon admittedly presents no factual support for his claim that the
prosecutor admitted to the destruction of interview notes. See Appellant’s
Brief at 56 n.24 (“The original admission by Mr. Fina does not appear in the
record.”). The trial court determined that “[a]fter thoroughly questioning
the prosecutors in this case, we found there to be no evidence which
demonstrated that the prosecutors, or their agents, destroyed notes and/or
documentation that had not already been memorialized in written form and
disclosed to the defense.” Trial Court Opinion, 1/23/13, at 6.
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“[t]he evidence was legally insufficient to support the convictions.” Id. The
panel found the claim waived, noting that the appellant “not only failed to
specify which elements he was challenging in his Rule 1925(b) statement, he
also failed to specify which conviction he was challenging.” Id.
Reviewing Veon’s Rule 1925(b) statement, we find that it is strikingly
similar to the statement at issue in Garland. Veon’s Rule 1925(b)
statement states in relevant part, “[t]he evidence was insufficient to prove
beyond a reasonable doubt that Mr. Veon committed any crime whatsoever.”
Rule 1925(b) Statement, 12/31/12, at 4. We are constrained to find Veon’s
claim waived, as his Rule 1925(b) statement is sweeping and generalized
that maintains that the evidence was insufficient, but utterly fails to pinpoint
any specific crime or any element of his convicted crimes that lacked
sufficient evidence. See Garland.
In any event, even if we were to address this claim on the merits, we
would have concluded that for the reasons set forth in our discussion of
Veon’s argument raising vagueness concerns, the evidence was sufficient to
support all of Veon’s convictions.
Judgment of sentence at 1698 MDA 2012 as to the convictions and
order of restitution at counts 5, 9, 13, and 17 affirmed and restitution
vacated at counts 1, 3, 7, 11, 15, and 19. Appeal at 2168 MDA 2012
quashed. Case remanded for further restitution proceedings consistent with
this opinion. Jurisdiction relinquished.
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Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 2/6/2015
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