Commonwealth v. Melvin

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NON-PRECEDENTIAL DECISION – SEE SUPERIOR COURT I.O.P 65.37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. :
:
JANINE MARY ORIE, :
:
Appellant : No. 941 WDA 2013
Appeal from the Judgment of Sentence May 7, 2013,
Court of Common Pleas, Allegheny County,
Criminal Division at No(s): CP-02-CR-0010286-2010
and CP-02-CR-0015981-2011
BEFORE: DONOHUE, OTT and MUSMANNO, JJ.
MEMORANDUM BY DONOHUE, J.: FILED AUGUST 21, 2014
Appellant, Janine Mary Orie (“Orie”), appeals from the judgment of
sentence entered on May 7, 2013, following her convictions for two counts of
theft of services, 18 Pa.C.S.A. § 3926(b), and one count each for conspiracy
to commit theft of services, 18 Pa.C.S.A. § 903(a), misapplication of
entrusted property, 18 Pa.C.S.A. § 4113(a), tampering with or fabricating
physical evidence, 18 Pa.C.S.A. § 4910, and solicitation to tamper with or
fabricate physical evidence, 18 Pa.C.S.A. § 902(a). Orie further contends
that the written sentencing order does not include any reference to the
condition that she write apology letters to certain individuals and family
members and, therefore, that requirement is a nullity. For the reasons that
follow, we affirm the judgment of sentence and conclude that the written
sentencing order dictates the terms of her sentence.
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At all times relevant hereto, Orie was employed as a secretary in the
Superior Court chambers of her sister, Joan Orie Melvin (“Orie Melvin”). On
April 6, 2010, the Commonwealth charged Orie at docket number CP-02-CR-
0010286 (hereinafter, “CC201010286”) with theft of services and conspiracy
to commit theft of services, based upon allegations that she conspired with
another of her sisters, then State Senator Jane Clare Orie (“Jane Orie”), to
divert the services of Jane Orie’s legislative staff for the benefit of Orie
Melvin’s 2009 political campaign for a seat as a Justice on the Supreme
Court of Pennsylvania. On February 8, 2011, a jury trial commenced on the
charges at CC201010286. Jane Orie was a co-defendant at this trial.
On the morning of March 3, 2011, while the jury was deliberating, the
trial court, per the Honorable Jeffrey Manning, commenced a proceeding at
the behest of the Commonwealth relating to three exhibits introduced at trial
by counsel for Jane Orie which, according to the Commonwealth, were
obvious forgeries. Judge Manning agreed that the exhibits appeared to be
forgeries, stating on the record that “Ray Charles could see that the
signatures are doctored.” N.T., 3/3/2011, at 7. Judge Manning asked
counsel for remedies for the introduction of the forged documents, at which
time counsel for Orie advised that if it became necessary to declare a
mistrial, “it has nothing to do with [Orie].” Id. at 18. Judge Manning halted
the jury deliberations and recessed, determining that an evidentiary hearing
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would take place later that day, at which time the trial court would hear the
testimony of a handwriting expert regarding the allegedly forged documents.
At this point, counsel for Orie requested and received permission from
Judge Manning to have lunch at a local restaurant. Id. at 37; Orie’s Brief at
12. Although counsel for Orie believed he would be called by the court
before the commencement of any proceeding, this did not occur. Although
Orie was present, the evidentiary proceeding and argument on alternatives
to a mistrial took place in her counsel’s absence. When her counsel returned
to the courtroom, he was advised that a mistrial had been declared as to
both defendants. The following exchange then took place:
[THE COURT]: You were to be here at 2:00 like everyone
else.
[COUNSEL]: Your Honor, I am sorry. When I asked you if I
could leave for lunch you said be available
within ten minutes. Nobody called me. I
called here and asked what was going on.
When I was told by Peggy that there was
something going on I immediately came here.
[THE COURT]: All right. That is good enough.
[COUNSEL]: That is number one.
[THE COURT]: Number two, I will hear [] what you want to
say about a mistrial. There is manifest
necessity here and a mistrial is going to be
granted, so what do you say?
[COUNSEL]: Well, there is – absolutely nothing about any of
this has to do with [Orie]. These documents
have nothing to do with 2009, number one;
and number two, they weren’t used by the
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prosecutor to prosecute [Orie], and they
weren’t used by [counsel for Jane Orie] in any
way to infer any innocence on the part of
[Orie], and they have nothing to do with
[Orie]. This mistrial should not apply to [Orie].
[THE COURT]: I understand your position. She is charged as
a co-conspirator and an accomplice with the
person with whom the mistrial is granted. I
don’t think that there is any choice but that the
Court has to grant a mistrial in her matter as
well.
N.T., 3/3/2011, at 37-38.
On April 4, 2011, Orie filed a motion for dismissal of all charges at
CC201010286 on the grounds of double jeopardy under the Pennsylvania
and United States Constitutions. On April 13, 2011, Judge Manning entered
an order denying the motion as frivolous.1
While awaiting retrial, the Commonwealth filed new charges against
Orie at docket number CP-02-CR-0015981 (hereinafter, “CC201115981”),
asserting claims for theft of services, misapplication of entrusted property,
tampering with or fabricating evidence, and solicitation to tamper with or
1
Judge Manning likewise ruled that a similar motion to dismiss filed by Jane
Orie was frivolous. This Court denied review. The Supreme Court granted in
part Jane Orie’s petition for allowance of appeal, remanding the case to this
Court for a determination as to whether the trial court erred in finding Jane
Orie’s motion to be frivolous. By published opinion filed August 31, 2011,
this Court ruled that Jane Orie’s motion was frivolous because it was based
upon the perpetration of a fraud upon the court by Jane Orie using forged
documents. Commonwealth v. Orie, 33 A.3d 17 (Pa. Super.), appeal
denied, 32 A.3d 1195 (Pa. 2011). On September 27, 2011, the Supreme
Court denied Jane Orie’s petition for allowance of appeal from this Court’s
decision. Commonwealth v. Orie, 32 A.3d 1195 (Pa. 2011).
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fabricate physical evidence. These charges were based upon allegations
relating to activities in Orie Melvin’s judicial chambers during her 2003 and
2009 political campaigns for the Supreme Court. On January 23, 2013, a
jury trial commenced against Orie (on the charges at both CC201010286
and CC201115981) and Orie Melvin, who was charged with three counts of
theft of services and one count each for conspiracy to commit theft of
services, misapplication of entrusted property, and conspiracy to tamper
with or fabricate evidence.
On February 21, 2013, the jury found Orie guilty of all charges at both
CC201010286 and CC201115981. As set forth in its written Order of
Sentence dated May 7, 2013, the trial court, per the Honorable Lester
Nauhaus, sentenced Orie for the crimes at CC201115981 to two concurrent
one year terms of county intermediate punishment (house arrest), to be
followed by two years of consecutive probation. Orie received no additional
penalty for her convictions at CC201010286. Not set forth in the written
sentencing order, but as described in the transcript of the May 7, 2013
sentencing hearing, the trial court purported to impose an additional
condition on Orie, namely that she write letters of apology to her family and
those she that instructed to do political work:
[THE COURT]: During the period of your sentence, starting with
your sentence of house arrest, you will send an
apology to each one of the people that you told
they had to do political work, and that you are
sorry for making them do that. You will also
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send an apology to each one of the members of
your family that you have put through this.
Do you understand me?
[ORIE]: Yes, Judge.
N.T., 5/7/2013, at 58.2
This timely appeal followed, in which Orie raises five issues for our
consideration and determination:
I. Whether the declaration of a mistrial sua sponte
after the jury had begun deliberations in the first
trial at CC201010286 constituted an abuse of
discretion by the trial judge when there was a failure
to consider if there were less drastic alternatives to a
mistrial, and, in any event, there was no compelling
necessity for the mistrial as to [Orie] so that retrial
was barred by that portion of Article I, Section 10 of
the Pennsylvania Constitution barring double
jeopardy?
II. Whether the declaration of a mistrial sua sponte
after the jury had begun deliberations in the first
trial at CC201010286 was not based on manifest
necessity ‘in the sole interest’ of [Orie] so that retrial
was barred by the Fifth Amendment of the United
States Constitution barring double jeopardy?
III. Whether [Orie] was denied her right to a fair trial at
CC201115981 by the combining of that trial with the
constitutionally barred retrial at CC201010286, thus
prejudicing [Orie]?
2
On October 2, 2013, Orie filed an “Application for Stay of Portion of
Criminal Sentence Requiring Appellant to Write Letters of Apology Pending
Disposition of this Direct Appeal.” By order dated November 6, 2013, this
Court denied the Application based upon Orie’s failure to comply with the
dictates of Rule 1732 of the Pennsylvania Rules of Appellate Procedure.
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IV. Whether it was error for the trial court to instruct the
jury on the issue of accomplice liability after the jury
started deliberations?
V. Whether the trial court erred procedurally and legally
in attempting to require [Orie] to write letters of
apology as part of her criminal sentence at
CC201115981?
Orie’s Brief at 4.
For her first two issues on appeal, Orie claims that her retrial on the
charges at CC201010286 was barred by principles of double jeopardy under
both the Pennsylvania and United States Constitutions. Article I, Section 10
of the Pennsylvania Constitution provides that “[n]o person shall for the
same offense, be twice put in jeopardy of life or limb ….” PA. CONST. art. I, §
10. The Fifth Amendment to the United States Constitution holds that “…nor
shall any person be subject for the same offense to be twice put in jeopardy
of life or limb.” U.S. CONST. amend. V. The protections against double
jeopardy under the Pennsylvania and United States Constitutions are
coextensive and thus may be analyzed together. Commonwealth v.
Cosnek, 836 A.2d 871, 873 n.2 (Pa. 2003); Commonwealth v.
Buffington, 828 A.2d 1024, 1029 (Pa. 2003); Commonwealth v. Barber,
940 A.2d 369, 377 (Pa. Super. 2007) appeal denied, 960 A.2d 835 (Pa.
2008); Commonwealth v. States, 891 A.2d 737, 742 (Pa. Super. 2005),
affirmed, 938 A.2d 1016 (Pa. 2007).
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Our standard of review with respect to the granting of a mistrial and
its effect on double jeopardy is as follows:
It is within a trial judge’s discretion to declare a
mistrial sua sponte upon the showing of manifest
necessity, and absent an abuse of that discretion, we
will not disturb his or her decision. Where there
exists manifest necessity for a trial judge to declare
a mistrial sua sponte, neither the Fifth Amendment
to the United States Constitution, nor Article I, § 10
of the Pennsylvania Constitution will bar retrial.
Commonwealth v. Hoovler, 880 A.2d 1258, 1260 (Pa. Super.) (quoting
Commonwealth v. Kelly, 797 A.2d 925, 936 (Pa. Super. 2002)), appeal
denied, 890 A.2d 1057 (Pa. 2005).
In Commonwealth v. Diehl, 615 A.2d 690 (Pa. 1992), our Supreme
Court described the legal standards to be applied when considering whether
manifest necessity for a trial court's sua sponte declaration of a mistrial
existed:
Since Justice Story’s 1824 opinion in United States
v. Perez, it has been well settled that the question
whether under the Double Jeopardy Clause there can
be a new trial after a mistrial has been declared
without the defendant’s request or consent depends
on where there is a manifest necessity for the
mistrial, or the ends of public justice would otherwise
be defeated. It is important to note that in
determining whether the circumstances surrounding
the declaration of a mistrial constitute manifest
necessity, we apply the standards established by
both Pennsylvania and federal decisions.
Pennsylvania Rule of Criminal Procedure [605(B)]
provides that:
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When an event prejudicial to the
defendant occurs during trial only the
defendant may move for a mistrial; the
motion shall be made when the event is
disclosed. Otherwise, the trial judge
may declare a mistrial only for reasons of
manifest necessity.
In accordance with the scope of our review, we must
take into consideration all the circumstances when
passing upon the propriety of a declaration of
mistrial by the trial court. The determination by a
trial court to declare a mistrial after jeopardy has
attached is not one to be lightly undertaken, since
the defendant has a substantial interest in having his
fate determined by the jury first impaneled.
Additionally, failure to consider if there are less
drastic alternatives to a mistrial creates doubt about
the propriety of the exercise of the trial judge's
discretion and is grounds for barring retrial because
it indicates that the court failed to properly consider
the defendant’s significant interest in whether or not
to take the case from the jury. Finally, it is well
established that any doubt relative to the existence
of manifest necessity should be resolved in favor of
the defendant.
Id. at 691 (citations omitted).
Moreover, in Commonwealth v. Leister, 712 A.2d 332 (Pa. Super.),
appeal denied, 732 A.2d 613 (Pa. 1998), this Court recognized that the trial
judge, “who is the foremost authority in his or her courtroom,” is usually
best positioned to determine the necessity of a mistrial. Id. at 335 (citing
Wade v. Hunter, 336 U.S. 684. 688 (1949) and In Interest of Morrow,
583 A.2d 816, 818 (Pa. Super. 1990)). In Leister, we further recognized
that “[t]his principle assumes great weight when the issue involves how the
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presentation of evidence or the conduct of parties affects a trial’s fact-
finder.” Id. (citing Arizona v. Washington, 434 U.S. 497, 514 (1978) and
Commonwealth v. Smith, 467 A.2d 888, 891 (Pa. Super. 1983)).
In the present case, Orie argues that no manifest necessity existed to
support the entry of a mistrial sua sponte on the charges against her in the
first trial. She contends that while her co-defendant introduced forged
documents into evidence to impeach the credibility of a key prosecution
witness, Jamie Pavlot (“Pavlot”), her counsel never referenced these forged
documents in his cross-examination of Pavlot. Orie’s Brief at 18-19. To the
contrary, Orie claims that the forged documents did not concern any events
in 2009, the only year during which the Commonwealth alleged that Orie
was involved in criminal conduct. Id. In addition, Orie asserts that the trial
court declared a mistrial in the absence of her counsel, and upon his arrival
made no attempt to explore alternatives to declaring a mistrial – including
the possibility of declaring a mistrial only as to Jane Orie, instructing the jury
to disregard the forged exhibits, and permitting the jury to complete its
deliberations on the charges against Orie. Id. at 19-21.
Judge Manning addressed all of these issues as follows:
Although [Orie] did not offer the documents into
evidence, she certainly stood to benefit from them to
the same extent as her co-defendant. She was
charged with criminal conspiracy and her co-
defendant was alleged to be her co-conspirator. The
fact that the documents were dated prior to 2009 is
immaterial. They were offered to impeach the
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Commonwealth’s most important witness, [Pavlot],
who was her co-defendant’s Chief of Staff. Pavlot’s
credibility was certainly material to this defendant’s
case as much as it was material to that of her co-
defendant. If the jury doubted Pavlot’s credibility,
this defendant would have clearly benefitted. To
allow the jury to consider forged documents in
making that important credibility determination
would have undermined the fact finding process that
is at the heart of any trial.
The [c]ourt also had to consider the possibility that
the forgery, if it were discovered by the jury, could
work to the prejudice of this defendant. Had the
Court not declared a mistrial as to this defendant
and a verdict of guilty were returned, the defendant
would have been able to raise the introduction of the
forged documents by her co-defendant as a basis for
a new trial.
In Commonwealth v. Wilson, 390 A.2d 847 (Pa.
Super. 1978), the trial court was faced with a
somewhat similar situation. During a joint trial, a
Commonwealth witness mentioned seeing mugshots
of the defendants. The codefendant moved for a
mistrial but the defendant, after initially joining in
that request, withdrew it and requested that he be
permitted to proceed to trial. The [trial court], over
the defendant’s objection, granted the mistrial sua
sponte. The defendant was convicted and appealed.
The Superior Court upheld the trial court’s decision,
writing:
The issue is clearly whether the
circumstances in this case and the grant
of a mistrial under the obviously
questionable circumstances and events
created a situation of manifest necessity?
In the landmark decision of U.S. v.
Perez, 22 U.S. (9 Wheat.) 579, 6 L.Ed
165 (1824), the Supreme Court stated:
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We think that in all cases of this nature,
the law has invested Courts of Justice
with the authority to discharge a jury
from giving any verdict, whenever, in
their opinion, taking all the
circumstances into consideration, there is
a manifest necessity for the act, or the
ends of public justice would otherwise be
defeated. They are to exercise a sound
discretion on the subject; and it is
impossible to define all the
circumstances, which would render it
proper to interfere. To be sure, the
power ought to be used with the greatest
caution, under urgent circumstances,
and for very plain and obvious causes;
and, in capital cases especially, Courts
should be extremely careful, how they
interfere with any of the chances of life,
in favor of the prisoner. But, after all,
they have the right to order the
discharge; and the security which the
public have for the faithful, sound, and
conscientious exercise of this discretion
rests, in this, as in other cases, upon the
responsibility of the Judges, under their
oaths of office. Id. at 580.
390 A.2d at 848. The Court went on to state:
We agree with the court below that the
circumstances of this case created the
manifest necessity required by the rule,
supra, and that it was done to protect
the defendant from the ‘mug shot’
evidence. Commonwealth v. Allen,
448 Pa. 177, 292 A.2d 373 (1972). His
reluctance to be so protected was
motivated by trial strategy to assure a
new trial in the event of conviction. The
action of the court below ‘was insuring
that appellant would receive a trial
by a fair and impartial jury which
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would return a verdict based solely
on the evidence adduced at trial.
This is an interest which is to be
protected not only for defendants,
but also for the public, which has a
compelling interest in justice for all.’
Commonwealth v. Stewart, supra,
456 Pa. page 453, 317 A.2d page 619.
Id. at 849 (emphasis supplied).
To allow this defendant to proceed to trial after the
mistrial was properly declared as to her co-defendant
based on the submission of clearly forged documents
would have allowed for the possibility of a verdict
corrupted, one way or the other, by the introduction
of forged and fraudulent documents. The defendant
could have benefitted from the forged documents if
the jury was unaware of the forgery and found them
damaging to the witnesses credibility. If convicted,
the defendant would be free to argue on appeal that
her right to a fair trial was denied by the actions of
her co-defendant in offering forged documents.
Declaring a mistrial as to her was made manifestly
necessary because to do nothing would have allowed
a corrupted trial to end with a corrupted verdict.
The [c]ourt must also address the defendant’s
contention that the mistrial was declared ex-parte,
which resulted in the Court not considering
appropriate alternatives. Defense counsel was
present on the morning of March 3, 2011 when the
documents were displayed in open court and the
alterations made to them were clearly apparent. He
was present when the Court engaged in extensive
discussions with counsel for the co-defendant and
the prosecutor. He did not make any argument.
Near the end of the morning session, when the Court
indicated that it would break to allow time for a
document examiner to appear and testify, in
response to the statement by counsel for the co-
defendant that before the Court instructs the jury on
the forged documents ‘...declare a mistrial.’ (M.T.
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[fn.#1] 3/3/11; p. 18), defense counsel said: ‘And
your honor, if I might, if there is any mistrial
declared it has nothing to do with Janine Orie.’
(M.T.; 3/3/11; p. 18). The Court responded, ‘I am
aware of that, Mr. DePasquale, and I agree with you.
The jury has been instructed that they are not to
continue their deliberations at this time. Their lunch
is coming at 12:15. We will resume this matter in
half an hour.’ (M.T.; 3/3/11; p.18).
When [c]ourt resumed after the recess, counsel for
the defendant was not present despite having been
advised that [c]ourt would resume in ‘half an hour.’
Counsel’s unexplained absence was not,
unfortunately, noticed by this Court, its staff, the
Commonwealth or co-defendant’s counsel. The
defendant was present. The Court then heard from
the document examiner and entertained argument
from counsel for the codefendant and the prosecutor.
During that argument, alternatives to declaring a
mistrial were considered. The Court then explained
its findings with regard to the documents and
advised that it was going to bring the jury down and
explain to them that a mistrial was being declared
and why. When the prosecutor mentioned the co-
defendant, the Court began to explain why the
mistrial would be granted as to both when it noted
the absence of [Orie’s counsel] and immediately
called a recess.
Upon counsel’s arrival, he apologized for not being
present and said that he thought he was to be called.
The Court then gave him the opportunity to have the
document examiner recalled to examine him, but
counsel declined. The Court then said, ‘I will hear
what you want to say about a mistrial.’ ( M.T.
3/3/11; p.38). Counsel made essentially the same
argument he raises in this motion. He did not offer
any alternatives other than to allow the jury to
proceed to a verdict. He also raised the possibility of
the jury having already reached a verdict as to his
client. There was nothing to indicate that that had
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occurred as the jury was instructed to stop
deliberations.
Defense counsel’s absence did not prejudice his
client and did not deprive counsel of the opportunity
to be heard on the issue of the mistrial. Counsel
certainly bears some of the fault for not appearing
when the Court indicated that the matter would
resume. When counsel did arrive, the Court gave
him the opportunity to examine the witness but he
declined. The Court also heard argument from
counsel regarding the issue of the mistrial. Counsel
was given the opportunity to provide the Court with
alternatives, but offered only that the trial continue
as to his client.
Trial Court Opinion, 4/13/2011, at 2-7.
We conclude that Judge Manning did not abuse his discretion in
declaring a mistrial sua sponte as to Orie at the first trial. For the reasons
set forth by Judge Manning, manifest necessity for a mistrial existed, as the
introduction of forged documents relating to a key prosecution witness
constituted a fraud on the court, corrupting the trial as to both defendants.
We cannot agree with Orie’s contention that the forged documents “did not
bear at all” on her guilt or innocence, Orie’s Brief at 18, as Pavlot’s
credibility, or lack thereof, was central (and perhaps dispositive) of the
charges against Orie. Judge Manning, who observed all of Pavlot’s
testimony, was in the best position to assess the impact that the
introduction of the forged documents likely had on the jury’s determination
of her credibility. While Orie’s counsel did not use the forged documents in
his cross-examination of Pavlot, said cross-examination was nevertheless
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extensive, and by Orie’s admission, included a lengthy attack on Pavlot’s
credibility. Id. at 19. As a result, Orie certainly stood to benefit by her co-
defendant’s fraud on the court.
Moreover, we conclude that the mistrial was declared for the benefit of
Orie. The trial court’s reliance on Wilson was well placed in this regard
since forged evidence is analogous to the “mug shot” evidence in that case:
We agree with the court below that the
circumstances of this case created the manifest
necessity required by the rule, supra, and that it
was done to protect the defendant from the ‘mug
shot’ evidence. Commonwealth v. Allen, 448 Pa.
177, 292 A.2d 373 (1972). His reluctance to be so
protected was motivated by trial strategy to assure a
new trial in the event of conviction. The action of the
court below “was insuring that appellant would
receive a trial by a fair and impartial jury which
would return a verdict based solely on the
evidence adduced at trial. This is an interest
which is to be protected not only for
defendants, but also for the public, which has a
compelling interest in justice for all.”
Wilson, 390 A.2d at 849 (emphasis added). The same rationale applies to
this case and supports the conclusion that the mistrial was declared for the
benefit of Orie.
Finally, based upon our review of the certified record, we cannot agree
with Orie that she suffered any prejudice as a result of her counsel’s absence
from a portion of the proceedings on March 3, 2011. Counsel declined the
opportunity to question the handwriting expert and offered, as the
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alternative to the declaration of a mistrial, that the jury proceed to verdict as
to Orie. Although delayed, counsel participated in the proceedings.
For her third issue on appeal, Orie argues that she “should never have
been retried at CC201010286,” since the retrial violated her constitutional
right against double jeopardy under both the Pennsylvania and United States
Constitutions.” Orie’s Brief at 27. She further contends that retrying her on
the charges at CC201010286 “prejudiced her in a trial before the same jury
at CC201115981.” Id.The nature of the issue Orie presents here is unclear. To the extent
that Orie is reasserting the double jeopardy arguments in her first two issues
on appeal and claiming that a retrial on the charges at CC201010286 was
constitutionally barred, the claim is rejected for the reasons set forth
hereinabove. Conversely, to the extent that she is contending that she was
prejudiced by having the charges against her at both CC201010286 and
CC201115981 tried together, we find she has not adequately preserved this
issue for appellate review.
Procedurally, Rule 582 of the Pennsylvania Rules of Criminal Procedure
governs the joinder of separate criminal indictments or informations. Rule
582 provides in relevant part:
(1) Offenses charged in separate indictments or
informations may be tried together if:
(a) the evidence of each of the offenses
would be admissible in a separate trial
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for the other and is capable of separation
by the jury so that there is no danger of
confusion; or
(b) the offenses charged are based on
the same act or transaction.
Pa.R.Crim.P. 582(a). The severance of offenses is governed by Pa.R.Crim.P.
583, which states that the trial court “may order separate trials of offenses
or defendants, or provide other appropriate relief, if it appears that any
party may be prejudiced by offenses or defendants being tried together.”
Pa.R.Crim.P. 583.
Orie’s appellate brief contains no argument, analysis, or citation to
authority regarding the application of Rules 582 and 583 in this case. As a
result, this issue is waived. See, e.g., Commonwealth v. Brewington,
740 A.2d 247, 252 n.2 (Pa. Super. 1999), appeal denied, 749 A.2d 465 (Pa.
2000).
For her fourth issue on appeal, Orie asserts that the trial court erred in
instructing the jury on the topic of accomplice liability after closing
arguments had been completed and the jury had begun its deliberations.
Orie’s Brief a 28. For the reasons that follow, we conclude that the trial
court’s supplemental instruction to the jury violated Rule 647(A) of the
Pennsylvania Rules of Criminal Procedure. We further conclude, however,
that Orie has not demonstrated actual prejudice resulting from this violation
to be entitled to any relief on appeal.
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On February 14, 2013, the trial court conducted a charging
conference, at which time it provided the parties with a draft of its proposed
charge to the jury and ruled on various requests for additional instructions.
N.T., 2/14/2013, at 2679-2703. During this charging conference, the
Commonwealth did not request a charge on “accomplice liability,” ask that
the term be defined, or otherwise object to the absence of a charge or
definition. During its subsequent charge to the jury, the trial court used the
word “accomplice” four times, all while summarizing the charges in the
informations filed against the co-defendants. The first three references took
place as the trial court reviewed the charges in the information filed against
Orie Melvin:
Count 1: Theft of Services. The actor, and when I
use the term actor, I’m talking about [Orie Melvin].
It’s a euphemism the legislature came up with.
Having control over the disposition of services of
others, namely actor’s Superior Court Judicial staff,
which she personally through [Orie] and [Jane Orie],
accomplices pursuant to statute, utilized to
facilitate and promote the actor’s political campaign
for higher judicial office during the election cycles in
both 2003 and 2009.…
Count 3: Theft of Services. The actor, having
control over the disposition of services of another,
namely, the Senatorial staff of [Jane Orie], which
she personally and through [Orie] and [Jane Orie],
accomplices pursuant to statute, utilized to
facilitate and promote the actor’s political campaign
for higher Judicial office during the election cycles in
both 2003 and 2009.…
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Count 5: Misapplication of Entrusted Property or
Property of Government or Financial Institutions.
The actor applied or disposed of property valued at
more than $50, namely, personally and through
[Orie], an accomplice pursuant to statute, used
her Superior Court office facilities and office
equipment to facilitate and promote the actor’s
political campaign activities in her bid for higher
judicial office in both 2003 and 2009.…
N.T., 2/15/2013, at 2776-79 (emphasis added).
The fourth reference to “accomplice” occurred as the trial court
reviewed the second count in the information filed against Janine Orie at
CC201010286:
Count 2: Theft of Services. [Orie], as an
accomplice pursuant to the statute, having
control over the disposition of the services of others,
namely, certain members of the legislative staff of
Senator [Jane Orie], did knowingly direct or cause to
be directed those employees of the Commonwealth
of Pennsylvania … to engage in political fundraising
and/or political campaign work, … on behalf of [Orie
Melvin’s] 2009 Judicial campaign, knowingly
diverting said services to the benefit of another not
entitled thereto.
Id. at 2785 (emphasis added).
The jury began deliberations after the trial court completed its charge,
and later that day it posed a question concerning the “the definitions as to
what [the trial court] read to us.” N.T., 2/15/2013, at 2817.
THE COURT: What is it you want defined, Mr. [Foreman]?
FOREMAN: What we are asking is to have the definitions as
to what you read to us. We all have the counts
that we wrote down, but what we want is the
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definitions, the one through four which you read
to us.
A JUROR: It was the criteria that you read under each, in
order to meet this, number one, number two,
number three.
THE COURT: You want the crimes?
THE JURY: Yes.
THE COURT: Here is what I’m going to do. I’ll will [sic]
basically reproduce what I gave you. I’ll send
that up, along with the Informations.
Id.
In the discussion between counsel and the trial court regarding how to
respond to the jury’s inquiry,3 counsel for the Commonwealth, for the first
time, asked the trial court to offer an expanded instruction on accomplice
liability.
MR. CLAUS: Judge, I have a notice that accomplice was
obviously read by you as part of the charges.
That is part of the standard charging, and I
thought if that’s what —
THE COURT: Well, you are little late, Mr. Claus, don’t you
think?
MR. CLAUS: Well—
THE COURT: Yeah, I do.
3
After a review of the Pennsylvania Rules of Criminal Procedure, including
in particular Rule 646(C)(3), the trial court reconsidered its initial decision to
provide the jury with the informations. N.T., 2/19/2013, at 2837. Instead,
the trial court prepared a handout for the jury, agreeable to the parties,
listing the elements and defenses for each charge. Id. at 2841.
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N.T., 2/15/2013, at 2820. Although the trial court initially indicated that the
request for an instruction on accomplice liability was too late, it agreed to
consider it over the holiday weekend. On the following Tuesday morning,
the trial court stated that it had reconsidered and would read to the jury an
instruction provided in writing by the Commonwealth, to which counsel for
Orie and Orie Melvin both objected.4 Id. at 2838. The trial court denied
these objections and instructed the jury as follows:
I used the term, and you will see in the document
that you get, of accomplice, and I did not define it
for you. There is a way that one defendant can be
proven liable for the conduct of another person or
persons, and that is when the defendant is an
accomplice of the person who actually commits the
crime at issue. To be an accomplice, a person does
not have to agree to help someone else. The person
is an accomplice if he or she on his or her own acts
to help the other person commit a crime.
More specifically, you may find a defendant is an
accomplice of another in this case if the following
two elements are proved beyond a reasonable doubt.
One, that the defendant had the intent of promoting
or facilitating the commission of the offense; and
two, that the defendant solicits, encourages,
requests the other person to commit it, or aids the
other person in planning or committing it.
Accomplice liability must be assessed separately for
each crime charged if two or more crimes are
committed. The defendant before you is being
charged as an accomplice for each of those crimes.
He or she may not be found liable unless it is shown
that each individual crime, that this defendant had
4
Both counsel objected to the giving of the charge itself, but not to any of
the specific language contained therein.
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the intent of promoting the specific crime and then
solicited, encouraged, requested the other person to
commit it, or aided the other person in planning or
committing it.
In other words, you must decide whether the
prosecution proved beyond a reasonable doubt that
this defendant was an accomplice for the first crime
or the second crime, et cetera.
It is important to understand that a person is not an
accomplice merely because he or she is present
when a crime is committed, or knows that a crime is
being committed. To be an accomplice, the
defendant must specifically intend to help bring
about the crime by assisting another in its
commission.
A person who is an accomplice will not be
responsible for a crime if and only if the person[,]
before the other person commits the crime[,] either
stops his or her own effort to promote or facilitate
the commission of a crime, and either wholly
deprives his or her previous efforts in effectiveness
in the commission of the crime, or gives timely
warnings to law enforcement.
N.T., 2/19/2013, at 2842-44.
Thereafter, on February 21, 2013, the jury asked two questions
regarding accomplice liability in Orie’s case, namely “can we get a more
defined explanation of ‘accomplice?’” and “[c]an it be applied to any of the
charges?” The trial court then instructed the jury, without objection, as
follows:
Ladies and gentlemen of the jury, to be an
accomplice, a person does not have to agree to help
someone else. The person is an accomplice if he or
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she on his or her own acts to help the other person
commit the crime knowingly.
More specifically, you may find the defendant is an
accomplice of another in this case if the following two
elements are proven beyond a reasonable doubt. A,
that the defendant had the intent of promoting or
facilitating the commission of the offense of theft of
services and, two, that the defendant solicits,
commands, encourages, requests the other person
to commit it or aids, agrees to aid or attempts to aid
the other person in planning or committing it.
It is important to understand that a person is not an
accomplice merely because he or she is present when
a crime is committed or knows that a crime is being
committed. To be an accomplice, the defendant must
specifically intend to help bring about the crime by
assisting another in its commission.
N.T., 2/21/2013, at 2852-53.
Rule 647(A) provides as follows:
(A) Any party may submit to the trial judge written
requests for instructions to the jury. Such requests
shall be submitted within a reasonable time before
the closing arguments, and at the same time copies
thereof shall be furnished to the other parties. Before
closing arguments, the trial judge shall inform the
parties on the record of the judge’s rulings on all
written requests and which instructions shall be
submitted to the jury in writing. The trial judge shall
charge the jury after the arguments are completed.
Pa.R.Crim.P. 647(A).
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Rule 647(A)5 was amended in 1985 to change prior practice, pursuant
to which the trial court did not rule on proposed jury instructions until after
counsel for the parties had completed their closing arguments to the jury.
As this Court recognized in Commonwealth v. Hendricks, 546 A.2d 79(Pa. Super. 1988), appeal denied, 559 A.2d 35 (Pa. 1989),
The difference in the procedure following the 1986
amendment is that the court now is required to rule
on proposed written jury instructions before closing
arguments and charging the jury whereas under the
old procedure the court ruled on the requested jury
instructions after closing arguments and the charge
to jury.
Id. at 81 (emphasis in original). Noting that Rule 647(A) effectively mirrors
Rule 30 of the Federal Rules of Criminal Procedure, this Court in Hendricks
indicated that under both rules, the trial court “is required to rule on all
proposed jury instructions prior to charging the jury and closing
summations.” Id. We further recognized that “[t]he purpose of this rule is
to require the judge to inform [counsel] in a fair way what the charge is
going to be, so that they may intelligently argue the case to the jury.” Id.
(citing United States v. Wander, 601 F.2d 1251, 1262 (3d Cir. 1979));
see also Commonwealth v. Alston, 748 A.2d 677, 679 (Pa. Super. 2000)
(same). At bottom, the rule requires the trial court to provide the parties
with adequate notice of the instruction before closing argument, and the rule
5
On March 1, 2000 (effective July 1, 1985), Rule 1119(A) was renumbered
as Rule 647(A). Pa.R.Crim.P. 647 Credits.
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is plainly violated when the trial court presents a new theory of liability, or
otherwise materially modifies the original instructions, after closing
arguments have been completed. See generally United States v. Smith,
789 F.2d 196, 202 (3d Cir. 1986).
The trial court’s decision to issue a supplemental instruction to the jury
on accomplice liability in this case after closing arguments violated Rule
647(A). As indicated hereinabove, at no time prior to closing arguments did
the trial court advise counsel that it intended to include detailed instructions
to the jury on accomplice liability, and the Commonwealth did not request a
charge on accomplice liability or object to the absence of such a charge. It
was only after closing arguments that the Commonwealth first requested
that the trial court instruct the jury, through a supplemental charge, that
Orie could be convicted as an accomplice. Under Rule 647(A), the trial court
could not materially modify its initial charge to the jury after closing
arguments had been completed.
A violation of Rule 647(A), however, does not ipso facto mandate a
reversal for a new trial. In Alston, this Court reviewed its prior decision in
Hendricks before concluding that “prejudice is indeed a mandatory
component” of a Rule 647(A) inquiry.
[T]he Hendricks court quoted federal case law when
it stated that ‘[f]ailure of the court to comply with
Rule 30 requires the granting of a new trial if
‘counsel's closing argument was prejudicially affected
thereby.’’ Id. (quoting United States v. McCown,
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711 F.2d 1441, 1452 (9th Cir. 1983)). Further, the
Hendricks court analyzed in great detail the jury
instruction requests made by counsel and the closing
argument made to the jury, drawing a nexus between
the court's error and counsel’s specific statements.
Finally, the Hendricks holding is quite clear:
‘Accordingly, we conclude that the court’s failure to
inform counsel of its ruling on the requested points
for charge prior to closing arguments and the jury
instruction, was prejudicial to appellant's defense and
warrants that a new trial be granted.’ Id. at 83. In
light of all of these factors, we hold that Rule [647]
relief is not warranted unless prejudice has been
established.
Alston, 748 A.2d at 679.6 Federal courts have likewise held that a
“violation of Rule 30 requires reversal only when the defendant can show
actual prejudice.” United States v. Benson, 2006 WL 2520612, at *14
(E.D. Pa. 2006) (quoting United States v. Horton, 921 F.2d 540, 547 (4th
Cir. 1990)). In United States v. Gaskins, 849 F.2d 454 (9th Cir. 1988),
the federal court framed the question as “whether the district judge’s
decision to give the aiding and abetting instruction during jury deliberations,
6
We reject the trial court’s contention that no prejudice resulted because
the jury had only been deliberating for a short time before receiving the
supplemental instruction. Trial Court Opinion, 9/12/2013, at 28 (“Any harm
that occurred was minimal and not prejudicial since the jury only deliberated
a short time before this [c]our gave the expanded instruction of accomplice
liability.”). As Hendricks makes clear, the potentially prejudicial aspect of a
trial court’s decision to provide additional instructions after closing
arguments is that it interferes with counsel’s ability to tailor his or her
closing arguments to the trial court’s actual jury charge. Hendricks, 546
A.2d at 81 (“It [is] the court's failure to advise counsel of its ruling prior to
closing argument, not the soundness of that ruling, which violate[s] Rule 30
and prejudicially affect[s] counsel’s summation.”) (quoting Wright v.
United States, 339 F.2d 578, 580 (9th Cir. 1964)).
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after initially stating at the Rule 30 hearing that he would not, unfairly
prevented Gaskin’s counsel from arguing against an aiding and abetting
theory to the jury.” Id. at 460.
In accordance with this standard, Orie contends that she was
prejudiced because she relied upon the absence of an accomplice liability
instruction in preparing for closing argument. Orie’s Brief at 32. She argues
that “[h]ad the defense known that the trial court would reverse course and
introduce the concept of accomplice liability after closing arguments
concluded,” her counsel “would have directly addressed the issue in the
closing.” Id.
Before proceeding to consider Orie’s contention that she suffered
actual prejudice resulting from the trial court’s clear error, we must note
that Orie arguably waived this claim by failing to request the opportunity to
offer additional argument to the jury to address the supplemental charge
after being informed that it would be given. Although this issue has not
been discussed by any Pennsylvania appellate courts in connection with Rule
647(A), federal courts have held that prejudice resulting from violations of
Federal Rule of Criminal Procedure 30 may in some cases be ameliorated or
eliminated by permitting counsel the opportunity for supplement argument
to the jury. See, e.g., United States v. Fontenot, 14 F.3d 1364, 1368
(9th Cir. 1994) (when “a new theory is presented to the jury in a
supplemental instruction after closing argument, the court generally should
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give counsel time for additional argument”) (quoting United States v.
Horton, 921 F.2d 540, 547 (4th Cir. 1990)); United States v. Civelli, 883
F.2d 191, 196 (2d Cir. 1989) (“[T]he principles that underlie Rule 30 may
very well require that the district court allow further argument after an
instruction has been given.”); United States v. Gaskins, 849 F.2d 454,
457 (9th Cir. 1988) (new trial granted for violation of Rule 30 after the
district court denied defense counsel’s request to reopen closing argument);
Vazquez v. Adams, 2011 WL 3420644, at *6 (C.D. Cal. June 27, 2011),
report and recommendation adopted, 2011 WL 3419562 (C.D. Cal. Aug. 1,
2011) (same); but see Cruz v. State, 963 A.2d 1184, 1192 (Maryland
2009) (“We are not persuaded that a supplemental closing argument would
have cured the problem created by the court’s eleventh hour insertion of this
new theory of culpability.”). Because neither party raised or briefed the
waiver issue, out of an abundance of caution we will proceed to consider
Orie’s claim of actual prejudice on its merits.
On its merits, we must conclude that Orie has not established actual
prejudice to entitle her to a new trial. In this regard, we begin by noting
that in connection with Count 2 of CC201010286, Orie was charged as an
accomplice in the theft of services from the legislative offices of Jane Orie for
the benefit of Orie Melvin’s 2009 political campaign. As set forth
hereinabove, in its charge to the jury, the trial court advised that under
Count 2 Orie was charged “as an accomplice” with knowingly directing
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certain members of Jane Orie’s legislative staff to engage in political
fundraising and campaign work on behalf of Orie Melvin’s 2009 judicial
campaign. N.T., 2/15/2013, at 2785. Accordingly, the Commonwealth’s
closing argument described Orie as “an accomplice of other individuals in
this case,” and contended that Orie was “answerable as an individual,
accomplice liability, for the work that was done in promoting and using the
staff of the Legislative office of [Jane Orie] for [Orie Melvin’s] campaign.”
Id. at 2767.
Counsel for Orie addressed the accomplice liability charge under Count
2 in her closing argument to the jury. As a general matter, counsel argued
that the witnesses offering testimony against Orie lacked credibility, that she
had no involvement whatsoever with the events in question, that she was
instead merely a secretary in her sister’s office, and that she was on trial
only because her name was “Orie” and her sisters were Orie Melvin and Jane
Orie. See, e.g., N.T., 2/15/2013, at 2734 (“Is she anything more than
collateral damage? Anything more than a patsy who gets put into this
because of her name, because of her family?”). More specifically with regard
to Count 2, counsel reviewed the testimony of three members of Jane Orie’s
legislative staff in an effort to show that Orie had little or no contact with
them and thus could not have directed them to engage in any wrongdoing.
With respect to witness Audrey Rasmussen Mackie, counsel argued that her
testimony showed that she had “virtually no contact” with Orie and asked
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the jury “how then could [Orie] be responsible for any theft involving Audrey
Rasmussen Mackie?” Id. at 2729. With respect to legislative staffer Josh
Dott, counsel contended that if he engaged in any improper political activity
during the 2009 election, ”he certainly didn’t do it on orders of [Orie].” Id.
at 2730, 2732 (“There is nothing with Josh Dott where he is controlled in
any way by [Orie].”). And with respect to witness Jennifer Rioja, the intern
on Jane Orie’s staff who first reported alleged improprieties to the Allegheny
County District Attorney’s office, Orie’s counsel reminded the jury that Rioja
never even mentioned Orie when describing the wrongdoing in the
legislative office. Id. at 2733 (“[Rioja] [n]ever once mentioned the name
[Orie].”).
In our view, this closing argument by counsel for Orie constituted an
attempt to refute the accomplice liability charge against her. While Orie now
contends that her counsel would have “directly addressed” accomplice
liability in the closing argument if a more complete charge on this theory of
criminal liability had been included in the trial court’s initial instruction, on
appeal she offers no explication as to what the contents of such an expanded
argument would have included, what other evidence could have been used
in support thereof, or how it would have differed materially from the actual
closing argument by her counsel at trial. As such, Orie has not provided this
Court with any basis on which to evaluate the degree (if any) of any actual
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prejudice resulting from the trial court’s error. Accordingly, we cannot grant
the requested relief on this issue.
For her fifth issue on appeal, Orie contends that the requirement that
she write apology letters is not a part of her sentence because it was not
included in the written sentencing order. We agree. The trial court
sentenced Orie by written order dated May 7, 2013, and this written order
makes no mention of any requirement or condition that she write apology
letters. The trial court did not thereafter amend its written sentencing order
to include such a requirement or condition.7
Where there is a discrepancy between the sentence as written and as
orally pronounced, both this Court and our Supreme Court have consistently
and without exception held that the terms of the written sentence signed by
the sentencing judge controls. See, e.g., Commonwealth v. Isabell, 467
A.2d 1287, 1292 (Pa. 1983) (“Generally, the signed sentencing order, if
legal, controls over oral statements of the sentencing judge not incorporated
into the signed judgment of sentence.”); Commonwealth v. Willis, 68
A.3d 997, 1010 (Pa. Super. 2013) (“It is well settled that, where there is a
discrepancy between the sentence as written and orally pronounced, the
written sentence generally controls.”) (quoting Commonwealth v. Gordon,
7
On May 14, 2013, the trial court entered an order setting forth in detail
the amount of restitution, fines, and costs to be paid by Orie. Order of
Court, 5/14/2013, at 1-2. Said order does not purport to amend the May 7,
2013 sentencing order and makes no mention of any requirement that Orie
write letters of apology.
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897 A.2d 504, 507 (Pa. Super. 2006)); Commonwealth v. Quinlan, 639
A.2d 1235, 1239 (Pa. Super. 1994) (same), appeal dismissed, 675 A.2d 711(Pa. 1996); Commonwealth v. Hodge, 369 A.2d 815, 820 (Pa. Super.
1977) (an oral pronouncement of sentence is not a “sentence imposed” until
incorporated in a signed written judgment). Commonwealth v. Foster,
324 A.2d 538, 539 (Pa. Super. 1974) (“Oral statements made by the judge
in passing sentence, but not incorporated in the written sentence signed by
[the sentencing judge], are not part of the judgment of sentence.”).
Judgment of sentence affirmed in accordance with the dictates of this
Memorandum.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 8/21/2014
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