Commonwealth v. Perretta-Rosepink, J-A24003-13

COMMONWEALTH OF PENNSYLVANIA Appellee v. ANNA MARIE PERRETTA-ROSEPINK Appellant

J-A24003-13

No. 2154 MDA 2012

SUPERIOR COURT OF PENNSYLVANIA

FEBRUARY 6, 2015

NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

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-0004272-2009

BEFORE: PANELLA, J., MUNDY, J., PLATT, J.^*

MEMORANDUM BY PANELLA, J.

In this appeal, we consider, among other things, a challenge that Section 1103(a) of the Public Official and Employee Ethics Act is unconstitutionally vague, both as applied and facially, and overbroad. We affirm the convictions, but vacate and remand for further proceedings on restitution.

At all relevant times, Appellant, Anna Marie Perretta-Rosepink, was an employee of her co-defendant, Michael Veon,¹ 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 Peretta-Rosepink, alleging that they had 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 Perretta-Rosepink guilty on the following charges:

• 1 count of violating 65 Pa.C.S.A. § 1103(a) (conflict of interest;

• 1 count of violating 18 Pa.C.S.A.. § 3921(a) (theft by unlawful taking);

• 1 count of violating 18 Pa.C.S.A.. § 3922(a)(1) (theft by deception);

• 1 count of violating 18 Pa.C.S.A.. § 3927(a) (theft by failure to make required disposition of funds);

• 1 count 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 Perretta-Rosepink to an aggregate sentence of 48 months' intermediate punishment, and ordered Veon to pay the amount of $100,000.00 in restitution to the Commonwealth of Pennsylvania.

Perretta-Rosepink filed post-sentence motions, which the trial court granted in part and denied in part. The trial court granted Peretta-Rosepink's request for a hearing on restitution. The trial court held the hearing and entered an order on November 8, 2012, fixing restitution at $116,615.00. This timely appeal followed.

On appeal, Perretta-Rosepink raises the following issues:

I. Whether the Pennsylvania Conflict of Interest Law is unconstitutionally vague on its face, and whether the trial 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 [Peretta-Rosepink].

a. 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 nonprofit 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 ... [Peretta-Rosepink]'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.

Appellant's Brief at 13-14.

In her first issue on appeal, Perretta-Rosepink argues that the Pennsylvania conflict of interest statute is unconstitutional. 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. Perretta-Rosepink 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 Commonwealth v. Lawrence, 99 A.3d 116, 118 (Pa.Super. 2014). "[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 Perretta-Rosepink'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 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 roughidea 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 Perretta-Rosepink 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.

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 ora business with which he or a member of his immediate family is associated.

65 Pa.C.S.A. § 1102. Definitions.

Perretta-Rosepink first claims the statute is vague on its face as it fails to define the conduct prohibited. She maintains that the statute utilizes general, conclusory terms. Thus, she contends that the conflict of interest statute extends beyond illegal activity and encompasses constitutionally protected activity—her right, as well as public officials' and employees' rights as a whole, to free speech. In support, Perretta-Rosepink 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...