SUPERIOR COURT OF PENNSYLVANIA
`
`COMMONWEALTH,
`
`: Docket No. 2154 MDA 2012
`
`Appellee,
`
`ANNAMARIE PERRETTA-ROSEPINK : (Dauphin County)
`Appellant
`
` :Trial Court Docket No
`
`: CP-22-CR-4272-2009
`
`BRIEF OF APPELLANT,
`ANNAMARIE PERRETTA-ROSEPINK
`
`Appeal from the May 23, 2012 Sentencing Order of the
`Dauphin County Court of Common Pleas
`Docket # CP-22-CR-4272-2009
`
`Michael 0. Palermo, Jr., Esquire
`Attorney for Appellant
`3300 Trindle Road
`Camp Hill, PA 17011
`(717) 635-9591
`Supreme Court I.D.93334
`
`Pennsylvania Office of
`Attorney General
`16th Floor - Strawberry Sq.
`Harrisburg, PA 17120
`For Appellee, Comm. of PA
`
`DATE FILED
`
`LfJJiL. SESSION:
`
`JOURNAL NUMBER
`
`PANEL
`
`CORRECTIONS
`
`SHELF
`
`

`

`TABLE OF CONTENTS
`
`Table of Authorities 4-7
`
`Statement of Jurisdiction 3
`
`Statement of Scope and Standard of Review 8-10
`
`Order in Question 11-12
`
`Questions Presented 13-14
`
`Statement of the Case 15-19
`Summary of Argument 20-21
`
`Argument
`I. 22
` 45
`
` 56
`IV. 65
`V. 72
`
`Conclusion and Statement of Relief Sought .75
`
`Certificate of Service 76
`
`2
`
`

`

`L STATEMENT OF JURISDICTION
`
`This case is within the jurisdiction of the Superior Court of
`
`Pennsylvania in that it is an appeal from a final order of a lower court
`
`and not within the original jurisdictional confines of the Supreme Court
`
`of Pennsylvania or Commonwealth Court. See Pa.R.C.P. 341.
`
`3
`
`

`

`TABLE OF CITATIONS
`
`CASES
`
`PAGE(S)
`
`Commonwealth v. Omar, 981 A.2d 179 (Pa. 20 8
`Commonwealth v. Karkaria 8
`625 A.2d 1 Thr(Pa. 1-9173)
`Commonwealth v. Santana 8
`333 A.2d 876 (Pa. 1975)
`Commonwealth v. Chambers 2
`599 A.2d 630 (Pa. 1991)
`Commonwealth v. Clinton 2
`137 A.2d 463
`
`Commonwealth v. Robinson
`817 A.2d 1153, 1158 (Pa. Super. 2003) 3
`Commonwealth v. Scott
`597 A.2d 1220, 1221 (Pa. Super. 1991) 3
`Commonwealth v. Johnson
`42 A.3d 1017, 1027 (Pa. 2012) 3
`Commonwealth v. Picchianti
`600 A.2d 597, 599 (Pa. Super. 1991) 3
`Commonwealth v. Atanasio
`997 A.2d 1181, 1182-1183 (Pa. Super. 2010) 3, 45, 46, 48
`Commonwealth v. Stradley
`2012 Pa. Super 162, 2012 WL 3265097 3
`Skilling v. United States
`130 S. Ct. 2896 (2010) 12, 14, 17,
`18, 19
`
`Commonwealth v. DeWeese
`528 MDA 2012 14
`Commonwealth v. Orie
`31 WM 2011, 33 WDM 2011, 470 WAL 2011 14
`Commonwealth v. Cott
`1192 MDA 2010 14
`Commonwealth v. Perretta-Rosepink
`2154 MDA 2012, 1925 MDA 2012 14
`Commonwealth v. Feese
`338 MDA 2012 15, 57
`Aiello v. City of Wilmington
`623 F.2d 845 (3d Cir. 1980) 17
`Connally v. General Construction Company
`269 U.S. 385 (1926) 17
`Grayned v. City of Rockford
`408 U.S. 104 17
`
`4
`
`

`

`Kolender v. Lawson
`461 U.S. 352, 357 (1983) 17, 18
`Commonwealth v. Haybay
`934 A.2d 732 (Pa. Super. 2007) 19, 20
`Commonwealth v. Davidson
`938 A.2d 198 (Pa. 2007) 20, 23
`Buckley v. Valeo
`424 U.S. 1, 15 (1976) 20
` Randall v. Sorrel
`548 U.S. 230, 240 (2006) 20, 21
`Citizens United v. Federal Election Commission
`130 S. Ct. 876, 898 (2010) 20, 21
`Pap's A.M. v. City of Erie
`812 A.2d 591, 605 21
`Bureau of Professional & Occupational Affairs
`v. State Board of Physical Therapy
`728 A.2d 340 (Pa. 1999) 21
`Ins. Adjust. Bureau v. Ins. Commr.
`
`542 A.2d 1317, 1324 (Pa. 1988) 21
`Commonwealth v. Tate
`432 A.2d 1382, 1391 (Pa. 1981) 21
`DePaul v. Commonwealth
`969 A.2d 536 (Pa. 2009) 21
`United States v. Stevens
`130 S.Ct. 1577 23
`Keller v. State Ethics Commission
`816 A.2d 659 (Cmwlth Court 2004) 23-25, 29
`Commonwealth v. Sinclair
`897 A.2d 1218 31, 35-36, 43
`Commonwealth v. Brown
`727 A.2d 541 (Pa. 1999) 32, 48-50
`Commonwealth v. DeSumma
`559 A.2d 521, 523 (Pa. 1989) 37
`Commonwealth v. Grekis
`
`601 A.2d 1284, 1288 (Pa. Super 1982) 37
`Commonwealth v. Hoke
`928 A.2d 300 (Pa. Super. 2007) 37
`
`Commonwealth v. Hobson
`
`604 A.2d 717, 722 (Pa. Super. 1992) 44
`Commonwealth v. Pleger
`934 A.2d 715 (Pa. Super. 2007) 45-46
`Commonwealth v. Ortiz
`
`854 A.2d 1280 (Pa. Super. 2004) 46
`
`5
`
`

`

`Commonwealth v. Runion
`662 A.2d 617 (Pa. 1995) 50, 54, 55
`Commonwealth v. Boyd
`835 A.2d 812 (Pa. Super 2003) 51
`Commonwealth v. Figuero
`
`691 A.2d 487 (Pa. Super 1997) 51
`
`STATUTES
`
`1 Pa. C.S.A. 1921 b. 8
`1 Pa. C.S.A. 1903 8
`18 Pa. C.S.A. 1106(c)(1)(ii)(C) 55
`18 Pa. C.S.A. 1106(c)(1)(ii)(D) 49
`65 Pa.C.S. 1103 14
`65 Pa. C.S. 1103a 16, 51
`65 Pa. C.S. 1102 16
`18 Pa. C.S.A. 3922 51
`18 Pa. C.S.A. 3922(a)(1) 52
`18 Pa. C.S.A. 3921 51, 52
`18 Pa. C.S.A. 3927(a) 51
`18 Pa. C.S.A. 903 51
`18 Pa. C.S.A. 3901 53
`18 Pa. C.S.A. 1991 53
`18 Pa. C.S.A. 103 53
`
`6
`
`

`

`OTHER AUTHORITIES
`
`Merriam-Webster Dictionary 2013 34
`MacMillan Dictionary 2013 ed 34
`Free Dictionary Online 2013 ed. 34
`Dictionary.com 2013 ed. 34
`
`RULES
`
`Pennsylvania Rule of Appellate Procedure 341 .2
`Pennsylvania Rule of Appellate Procedure 1925 8
`Pennsylvania Rule of Criminal Procedure 564 44
`Pa.R.Crim.P. 606 55
`Pa.R.Crim.P. 573 56
`
`CONSTITUTIONAL PROVISIONS
`
`First Amendment of the United States Constitution 20
`Pa. Const. Article 1, Section 7 21
`
`7
`
`

`

`STATEMENT OF THE SCOPE AND STANDARD OF REVIEW
`
`This Court 's standard of review on the constitutional questions raised
`in this brief are as follows:
`
`As the constitutionality of a statute is a pure
`question of law, our standard of review is de n o vo
`and our scope of review is plenary. Moreover, we
` presume that statutes are constitutional and require
`those challenging the constitutionality of a statute to
`demonstrate that it clearly, plainly, and palpably
`violates the constitution. Although we must presume
`that the legislature does not intend to violate the
`constitution, we do not invoke that presumption
`where the language is clear. Our rules of statutory
`construction provide, "{w]hen the words of a statute
`are clear and free from all ambiguity, th e letter of
`it is no t to be disregarded under th e pretense
`of pursuing its spirit. " 1 Pa. C.S.A. §1921(b).
`(Emphasis supplied). Moreover, "[w]ords and
`
`phrases shall be construed according to the rules of
`grammar." 1 Pa. C.S.A. §1903, Comm on wealth v.
`Omar, 981 A.2d 179, 185 (Pa. 2009).
`
`When determining questions of sufficiency of the evidence to
`
`support a conviction, the following standard governs this Court 's
`
`review:
`
`A claim challenging the sufficiency of the
`evidence is a question of law. Evidence will be
`deemed sufficient to support the verdict when
`it establishes each material element of the
`crime charged and the commission thereof by
`the accused, beyond a reasonable doubt.
`Common wealth v. Karkaria , 625 A.2d 1167
`(Pa. 1993). Where the evidence offered to
`support the verdict is in contradiction to the
`physical facts, in contravention to human
`experience and the laws of nature, then the
`evidence is insufficient as a matter of law.
`Common wealth v. San tana , 333 A.2d 876 (Pa.
`1975). When reviewing a sufficiency claim,
`
`

`

`the Court is required to view the evidence in
`the light most favorable to the verdict winner
`giving prosecution the benefit of all reasonable
`inferences to be drawn from the evidence.
`Common wealth v. Chamb ers , 599 A.2d 630
`(Pa. 1991). However, while reasonable
`inferences must be drawn in the
`Commonwealth's favor, the inferences must
` flow from facts—and—circumstances proven—Fn
`the record, and must be of "such volume and
`quality as to overcome the presumption of
`innocence and satisfy the jury of the accused's
`guilt beyond a reasonable doubt.
`Com mon wealth v. Clin ton, 137 A.2d 463, 466
`(Pa. 1958). The trier of fact cannot base a
`conviction on conjecture and speculation and a
`verdict which is premised on suspicion will fall
`even under the limited scrutiny of appellate
`review.
`
`Common wealth v. R obinson, 817 A.2d 1153, 1158 (Pa. Super. 2003),
`citing Comm on wealth v. Scott, 597 A.2d 1220, 1221 (Pa. Super.
`1991).
`
`Because Perretta-Rosepink challenges the trial Court's admission
`
`of evidence regarding rent payments for the Beaver Fall's office, the
`
`admission of that evidence is reviewed by this Court under the abuse
`
`of discretion standard. Comm on wealth v. Johnson , 42 A.3d 1017,
`
`1027 (Pa. 2012).
`
`In reviewing a grant to amend an Informa tion , the Superior
`
`Court must determine whether the Defendant was fully apprised of the
`
`charges against her, whether the same basic facts and elements were
`
`present in the original information and the amended information,
`
`whether the Defendant was placed on timely notice regarding her
`
`9
`
`

`

`alleged criminal conduct, and whether prejudice to the Defendant
`
`resulted from the amendment. Comm on wealth v. Picch ian ti, 600 A.2d
`
`597, 599 (Pa. Super. 1991).
`
`The claims relating to restitution are reviewed under a different
`
`standard: "An app al-from—an—oTder of i-stilutkm based upon a claim
`
`that a restitution order is unsupported by the record challenges the
`
`legality, rather than the discretionary aspects, of sentencing. 'The
`
`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." Com m on wealth v. A tanasio , 997 A.2d
`
`1181, 1182-1183 (Pa. Super. 2010) (citations omitted). See, also,
`
`Common wealth v. Stradley, 2012 Pa. Super. 162, 2012 WL 3265097
`
`(filed August 13, 2012).
`
`10
`
`

`

`ORDERS IN QUESTION
`
`Annamarie Perretta-Rosepink appeals from the Judgment of Sentence imposed on
`
`May 23, 2012, which became final when her Post Sentence Motions were denied and the
`
`Memorandum Opinion and Order of Restitution of November 8, 2012 (RR. 8-11). The
`
`pertinent portions of the Sentencing Order of Court and the Order of Restitution are as
`
`ollows•
`
`ORDER OF COURT AT NO. 4272 CR 2009
`
`AND NOW, May 23, 2012, defendant is sentenced to
`
`AS TO COUNT 1 (Conflict of Interest)
`
`X Intermediate Punishment 48 months, 1st 9 months on electronic Monitoring, $250.00 fine.
`
`AS TO COUNT 21 (Theft by Unlawful Taking)
`
`_X_ 9 months electronic monitoring concurrent with Count 1.
`
`AS TO COUNT 5 (Misapplication of Entrusted Property)
`
`_X_ 9 months electronic monitoring concurrent to Count 1
`
`AS TO COUNT 6 (Conspiracy)
`
`_X_ 9 months electronic monitoring concurrent to Count 1
`
`By the Court: Bratton, J.
`
`1 Counts 3 and 4 merged for Sentencing purposes.
`
`11
`
`

`

`COMMONWEALTH OF PENNSYLVANIA: IN THE COURT OF COMMON
`: PLEAS, DAUPHIN COUNTY,
`: PENNSYLVANIA
`
`•
`v. : Criminal
`
` ANNAMARIE-PERRETM---ROSEPINK, :
`
`Defendant. : No. 4272 CR 2009
`
`ORDER
`
`AND NOW, THIS 8TH day of November, 2012, following a
`
`restkution hearing as requested by counsel and in accordance with the
`
`foregoing memorandum opinion, Defendant Annamarie Perretta-
`
`Rosepink is hereby ORDERED to pay to the Pennsylvania Department
`
`of Community and Economic Development, restitution in the total
`
`amount of $116,615, which is itemized as follows:
`
`Beaver Falls Office Rent -Counts 1, 2, 3, 4, 5, 6 $94,915
`Midland Office Rent - Counts 1, 2, 3, 4, 5, 6 $21,700
`
`All restitution at this docket shall be joint and several with Mrs.
`
`Perretta-Rosepink's co-defendant, Michael Veon, at criminal docket
`
`4274 CR 2009.
`
`BY THE COURT:
`
`Bruce F. Bratton, J.
`
`12
`
`

`

`STATEMENT OF THE QUESTIONS INVOLVED
`
`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.
`
`Answered in the negative in the Court below.
`
`II. WHETHER THE TRIAL COURT IMPROPERLY PERMITTED THE
`
`COMMONWEALTH TO AMEND THE CRIMINAL INFORMATION AFTER
`THE CLOSE OF THE COMMONWEALTH'S CASE, THEREBY PREJUDICING
`THE DEFENDANT.
`
`A. WHETHER THE TRIAL COURT IMPROPERLY PERMITTED
`THE DE FA CTO 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
`
`This question was answered in the negative in the Court below.
`
`III. WHETHER THE 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 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;
`
`13
`
`

`

`D. WHETHER THE RESTITUTION ORDER WAS IMPROPER
`
`BECAUSE THE COMMONWEALTH CANNOT BE A VICTIM
`UNDER THE SUBJECT CRIMINAL STATUTES.
`
`All questions answered in the negative in the Court below.
`
`IV. WHETHER THE VERDICT IS IMPROPER BECAUSE THE
`COMMONWEALTH CANNOT BE A VICTIM UNDER THE SUBJECT
`CRIMINAL STATUTES.
`
`Answered in the negative in the Court below.
`
`V. WHETHER THE COMMONWEALTH IMPROPERLY DESTROYED
`
`WITNESS INTERVIEW NOTES IN VIOLATION OF THE DEFENDANT'S
`CONSTITUTIONAL RIGHTS, AND IN VIOLATION OF THE
`
`PENNSYLVANIA RULES OF CRIMINAL PROCEDURE AND THE
`PENNSYLVANIA RULES OF PROFESSIONAL CONDUCT, THEREBY
`DEPRIVING THE DEFENDANT OF A FAIR TRIAL.
`
`Answered in the negative in the Court below.
`
`14
`
`

`

`STATEMENT OF THE CASE
`
`A. Procedural History
`
`On May 27, 2009, the Office of the Pennsylvania Attorney
`
`General filed criminal complaints against Michael Veon and Annamarie
`
`Peretta-Rosepink.2 Perretta-Rosepink was charqedwith_various felony
`
`counts including conflict of interests and various theft charges and
`
`criminal conspiracy. On February 13, 2012, a jury trial began in the
`
`Common Pleas Court in Dauphin County. On March 5, 2012, Perretta-
`
`Rosepink was convicted of six-charges. Those convictions consisted
`
`of: conflict interest, theft by unlawful taking, theft by deception, theft
`
`by familiar to make required disposition of funds, misapplication of
`
`entrusted property and criminal conspiracy. On May 23, 2012, the
`
`Honorable Bruce Bratton sentenced Perretta-Rosepink to serve a
`
`sentence of Intermediate Punishment consisting of 48 months the first
`
`9 months to be served on electronic monitoring.
`
`On November 8, 2012, the trial Court ordered restitution in the
`
`amount of $116,615.00. The Court denied Perretta-Rosepink's timely
`
`filed post-sentence motions as to the trial issues on August 10, 20123.
`
`Perretta-Rosepink filed a timely Notice of Appeal. By Order of
`
`the trial Court dated December 12, 2012, Perretta-Rosepink was
`
`directed to file a statement pursuant to Pennsylvania Rule of Appellate
`
`2
`
` Dauphin County Criminal Court Docket Nos. 4272 CR 2009 and 4274 CR 2009,
`
`respectively.
`
`'The Court did grant Perretta-Rosepink's request for a Restitution Hearing.
`
`15
`
`

`

`Procedure 1925. On January 2. 2013, Perretta-Rosepink filed that
`
`statement with the trial Court, and the Court issued and Opinion
`
`pursuant to 1925(a) in response. See RR.12-15.
`
`This appeal follows.
`
` Factual History
`
`On May 27, 2009, criminal charges were filed against Mr. Michael
`
`Veon, the former Democratic Whip for the Commonwealth of
`
`Pennsylvania, as well as your instant Appellant, Annamarie Perretta-
`
`Rosepink, a 22 year employee of Veon's Legislative District Office in
`
`Beaver Falls, Pennsylvania. The prosecution related to actions by Mr.
`
`Veon and Mrs. Perretta-Rosepink in their roles in the non-profit
`
`organization established by then Representative Veon known as
`
`Beaver Initiative for Growth ("BIG").
`
`In this criminal action, the Commonwealth claimed that Mr. Veon
`
`and Mrs. Perretta-Rosepink conspired to somehow steal money
`
`belonging to the taxpayers through the vehicle of the non-profit BIG.
`
`The 6-count criminal complaint filed against Perretta-Rosepinlk
`
`involved two specific issues including a.) a payment to former
`
`representative Terry Van Horne; and b.) rental payment for an office
`
`in Midland, Pennsylvania. See RR 1-4.
`
`At trial in this action, the Commonwealth attempted to prove
`
`that Perretta-Rosepink had engaged in a manner of illegal activities
`
`16
`
`

`

`related to the non-profit, Beaver Initiative for Growth ("BIG"). All of
`
`the counts upon which Perretta-Rosepink was convicted related to the
`
`alleged improper payment by the non-profit of rent for offices located
`
`in Midland, Pennsylvania as the matter regarding Mr. Van Horn was
`
` abandoned by thc Commonwealth—attl. Generally, Lhe
`
`Commonwealth alleged that that Mr. Veon made the non-profit pay for
`
`his legislative district office in Midland, Pennsylvania and Perretta-
`
`Rosepink, as an employee of BIG conspired to pay said rents. The
`
`evidence in trial showed that the Midland office was used by BIG
`
`personnel, and that Mr. Veon had excess, unused monies allotted to
`
`him as a legislator for rent payments. The Comptroller of the House of
`
`Representatives testified that Mr. Veon had no motive to improperly
`
`assign these rent payments to the non-profit.
`
`At the close of the Commonwealth's case, the Court permitted
`
`the Commonwealth to amend the Criminal Information, in relevant
`
`part, permitting the allegation that Perretta-Rosepink [as well as Veon]
`
`failed to "staff" the Midland office.
`
`In the Court's charge to the jury, as in the prosecution's closing
`
`argument to the jury, the Court told the jury that it could find
`
`Perretta-Rosepink guilty of Conflict of Interest if they found that Mr.
`
`Veon/Perretta-Rosepink realized some intangible benefit like free
`
`publicity or enhanced standing in the community from their actions.
`
`17
`
`

`

`After the jury's charge, the Court sent a Verdict Slip to the jury
`
`which included improper language suggesting that the Defendants
`
`were being charged with the misappropriation of funds related to
`
`multiple district offices, even though the Information charged Perretta-
`
`y a sing e orrice. I urtnermore, tue prosecu ion fld
`
`maintained from the first preliminary through trial that Perretta-
`
`Rosepink was only being charged with alleged misuse of rent
`
`payments related to the Midland office. Nevertheless, the Court
`
`permitted the jury to find Perretta-Rosepink guilty if it found that she
`
`improperly paid rents at either or both of the district offices at issue.
`
`This Verdict Slip was submitted to the jury over the objections of the
`
`defense that this slip would confuse the jury into believing that
`
`Perretta-Rosepink was charged with both offices, and into confusion
`
`over whether the charges related to one or both of those offices.
`
`Shortly after the jury began deliberations, it returned a question
`
`almost identical to the defense objection. The Court at that point
`
`refused to correct the error and sent the jury a note that it could
`
`consider convicting Perretta-Rosepink on either or both district offices.
`
`The jury then returned guilty verdicts on the six counts as indicated.
`
`With respect to the theft counts related directly to the charges
`
`surrounding the Midland office, the jury returned verdicts of guilty on
`
`18
`
`

`

`Counts 1,2,3,4,5 and 6. As the Verdict Slip evidences4, there is no
`
`way to determine whether in bringing those guilty verdicts the jury
`
`convicted Perretta-Rosepink on misuse of funds related one or both of
`
`the offices in question.
`
`imeir,iea post-trial mo ions wflILII were
`
`denied by the trial Court on August 10, 2012. On November 8, 2012,
`
`the Court entered an Order regarding restitution and a Memorandum
`
`Opinion in support thereof.
`
`This appeal follows.
`
`4 RR. 5-6.
`
`19
`
`

`

`SUMMARY OF THE ARGUMENT
`
`I. The Pennsylvania Conflict of Interest statute is unconstitutionally vague
`
`and overbroad. The United States Supreme Court's holding in Skifling v. U. S . applies to
`
`the Pennsylvania statute. The constitutionality of the Pennsylvania statute is a question
`
`of first impression in this Court. The statute violates the First Amendment Free Speech
`
` rights_of_Perretta-Rosepink_as-well_as_ali_ppnncyivania-electPd-offielalsThe trial C urt's
`
`interpretation of the definition of "private pecuniary gain" has impermissibly expanded
`
`the reach of the statute to include all actions, including legitimate legislative actions of all
`
`Pennsylvania elected officials.
`
`The trial Court improperly permitted the amendment of the criminal
`
`information in this case. The Court erred in permitting the de facto amendment to the
`
`information when it submitted a verdict slip which permitted the jury to find guilt if it
`
`found improper rent payments for either or both the Midland and Beaver Falls offices, and
`
`when it failed to properly respond to the jury's question regarding which office was being
`
`referred to in the verdict slip. The Court's direction to the jury made it appear that
`
`Perretta-Rosepink was being charged with improprieties as to both offices, when, from
`
`the time of the preliminary hearings to the close of testimony, the Commonwealth
`
`maintained that the charges against Perretta-Rosepink related to the Midland office only.
`
`III. The restitution ordered by the Court was improper in several ways. The
`
`amount ordered was not rationally related to the evidence adduced at trial. The amount
`
`ordered was speculative because the Court could not know which legislative office or
`
`offices were the subject of the jury's verdict. The amount ordered was excessive because
`
`the non-profit benefitted from the use of the office space, so that an order of restitution
`
`of the entire rent amount paid was against the evidence presented. Finally, the
`
`restitution order was improper because the Commonwealth cannot be a victim of these
`
`crimes for restitution purposes.
`
`IV. The Commonwealth cannot be a victim of the crimes charged based upon
`
`the plain language of the statute, and the rules of statutory construction.
`
`20
`
`

`

`V. The wholesale destruction of witness interview notes by the prosecutors
`
`was improper, and violated Perretta-Rosepink's constitutional rights, the Rules of Criminal
`
`Procedure and the Rules of Ethics, requiring that the verdict be vacated because the
`
`Defendant was denied a fair trial.
`
`21
`
`

`

`ARGUMENT
`
`I. THE SCOPE OF THE UNCONSTITUTIONALLY VAGUE
`CONFLICT OF INTEREST STATUTE HAS NOW BEEN EXPANDED.
`IT NOW THREATENS THE FIRST AMENDMENT RIGHTS
`OF ALL ELECTED OFFICIALS
`
`rpe-cunTary nents incluae IndnyIDIe
`political gain such as garnering favorable
`publicity, obtaining free publicity, enhancing
`standing in the community or the like. 5
`
`It is tempting to suggest that the large number of appeals
`
`raising the issue of the vagueness and over breadth of the
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`Pennsylvania Conflict of Interest statute which have passed through
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`this Court, or to the Pennsylvania Supreme Court on direct appeal,
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`foreshadowed the issues raised in this argument.6 It is further
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`tempting to suggest that the United States Supreme Court anticipated
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`these issues in its landmark holding in Skilling V. United Sta tes, 130
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`S.Ct. 2896 (2010). However, neither the high Court, nor the
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`Pennsylvania Supreme Court, nor this Court could have imagined the
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`now unbridled reach of the prosecution that occurred in this case.
`
`5
`
` Hon. Bruce Bratton charging the Jury on the meaning of the language of Pennsylvania's
`Conflict of Interest statute, 65 Pa.C.S. § 1103, Charge to the Jury, Commonwealth v.
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`Michael Veon, et al. No. 4274 CR 2009, Dauphin County Common Pleas Court, March 1,
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`2012, Trial Day 9, (Jury Charge Transcript) pp. 23-24). (Emphasis supplied).
`
`6 These include: Commonwealth v. De Weese , Sup.Ct. Docket No. 1528 MDA 2012,
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`Commonwealth v. Orie, Supreme Ct. Docket Nos. 31 WM 2011, 33 WDM 2011, 470
`WAL 2011, Commonwealth v. Cott, Sup.Ct. Docket No. 1192 MDA 2012,
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`Commonwealth v. Perretta-Rosepink, Sup.Ct. Docket No. 2154 MDA 2012, 1925 MDA
`2012, and Commonwealth v. Feese , Sup.Ct. Docket No. 338 MDA 2012.
`
`22
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`

`

`The standard enunciated by the trial Court, reproduced above, is just
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`what the Skilling Court warned against.
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`In the instant prosecution, the Commonwealth took the feared
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`excesses in the Skifling decision far beyond the concerns of the
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`ppellnts-mentioned. Iii Ihis irldlthe prosecution admitted that Mr.
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`Veon/Perretta-Rosepink took no money, nor any other thing of
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`monetary value. Instead, with the aid of the trial Court, the
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`Commonwealth was permitted to argue that Perretta-Rosepink
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`violated the state's Conflict of Interest statute, 65 Pa.C.S. §1103, by
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`receiving " intangible political gain" by "garnering favorable publicity,"
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`"garnering free publicity," and something called "enhanced standing in
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`the community." A searching review of the record will yield no
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`evidence whatsoever to support any of these intangible, alleged gains.
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`Nevertheless, the jury was permitted to reach this verdict with no
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`evidence of pecuniary, or any other gain, by Perretta-Rosepink or
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`anyone else.
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`This result, fueled by the improper closing argument of the
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`prosecution and the Court's highly objectionable charge to the jury,
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`goes beyond the wildest fears which can be conjured from the
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`arguments raised by Skilling counsel, as well as by the highly
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`respected members of the bar in the appeals cited. The trial Court in
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`this case permitted the jury to convict Perretta-Rosepink if they found,
`
`23
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`

`

`without any evidence whatsoever, that he received an "intangible
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`political gain" like "enhanced standing in the community" or "favorable
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`and/or free publicity" as a result of his conduct. (T.T. 3/1/12, pp. 23-
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`24) In permitting this unbelievable standard to govern the jury's
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` dclibcrations, thc lower-Court—guaranteed not only a Lain led veraict,
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`but the expansion of criminal liability to virtually all political activity of
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`any kind, at any level, undertaken by anyone holding political office,
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`from the dog catcher to the Governor himself. This result, in this case,
`
`is the manifestation of the constitutional concerns articulated by the
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`Supreme Court in SkiII/rig v. U. S. , 130 U.S. 2896 (2010):
`
`If Congress were to take up the enterprise of criminalizing
`"undisclosed self-dealing by a public official" . . . it would
`have to employ standards of sufficient definiteness and
`specificity to overcome due process concerns . . .
`
`130 S.Ct. at 2932-33. In Skilling, the high Court warned that any
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`attempt to expand the target of conflict of interest prosecutions to
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`activities not related to "bribes" and "kickbacks" would require great
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`care in order to avoid the constitutional issues raised in this and the
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`other identified appeals.
`
`That formulation, however, leaves many questions
`unanswered. How direct or significant does the conflicting
`financial interest have to be? To what extent does the
`official action have to further that interest in order to
`amount to fraud? To whom should the disclosure be made
`and what information should it convey? These questions
`
`and others call for particular care in attempting to
`formulate an adequate criminal prohibition in this context.
`
`24
`
`

`

`(Id. at 2933, n.44)
`
`Here, prosecutorial excess went beyond an attempt to
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`criminalize campaign work. Given the facts of this case, with law
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`created by the government and the trial Court, the "successful"
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` prosecution-of-Mr. Veonnd-Perrctta Roscpink-here-ha-srmtled the
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`impact of the Conflict of Interest law beyond anything contemplated by
`
`the legislators responsible for the subject amendments. This case
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`brings the vagueness of a law essentially rejected by the Supreme
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`Court into every action taken by any elected official. This is a result
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`abhorrent to the federal and state Constitutions, to the Court's holding
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`in Skilling, and to the intent of the Conflict of Interest law that governs
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`the conduct of all elected persons in Pennsylvania.
`
`A . The Pennsylvania Conflict of In terest Sta tute is Vague and
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`O verbroad
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`The Pennsylvania Conflict of Interest Statue provides that "[n]o
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`public official or public employee shall engage in conduct which
`
`constitutes a conflict of interest." 65 PA CS §1103a. "Conflict of
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`interest" is defined by the statute as
`
`[U]se by a public official or public employee of the
`authority of his office or employment ... for the
`priva te pecuniary benefit of himself [or] a
`member of his immediate family. ...the term does not
`include an action having a de minimus economic
`impact...
`
`25
`
`

`

`65 Pa. C.S. §1102. (Emphasis supplied).
`
`Nowhere in the statute do the terms "intangible political gain,"
`
`"favorable publicity" or "enhancing standing in the community" appear.
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`It is clear from the very words of the statute that the language is
`
`vague and overbroad. In light of what occurred in this case, no
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`adequate definition, for example, is provided for the term "private
`
`pecuniary gain." Neither is there a definition for the phrase "de
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`minimus economic impact" beyond "an economic consequence which
`
`has an insignificant effect." (Id. ) The word "insignificant" is not
`
`defined. It is well settled that a statute which is "so vague that men of
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`common intelligence must necessarily guess as to its meaning and
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`differ as to its application" violates due process. A iello v. City of
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`Wilmington , 623 F.2d 845, 850 (3d Cir. 1980), citing Connally V.
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`Gen eral Construction Company, 269 U.S. 385, 391 (1926). To be
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`constitutionally clear, a statute must "give the person of ordinary
`
`intelligence a reasonable opportunity to know what is prohibited, so
`
`that he may act accordingly." Grayn ed v. City of R ockford, 408 U.S.
`
`104, 108-109 (1972). Because the statute does not define what
`
`conduct is prohibited, nor what is meant by its general, conclusory
`
`terms, it creates a significant ambiguity in the law for those who would
`
`follow it and for those who would enforce it.
`
`26
`
`

`

`The United States Supreme Court's landmark holding in Skilling
`
`v. Un ited Sta tes, 130 S.Ct. 2896 (2010) gives direct and clear
`
`guidance when evaluating Pennsylvania's very similar conflict of
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`interest statute. The Skilling Court was confronted with a challenge to
`
` thc Federal Honcst Services Statute—(1-8 U.S.C. §-1346). Skilling
`
`repeated the Supreme Court's two-prong test for facial vagueness, set
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`forth in Kolender v. La wson, 461 U.S. 352, 357 (1983). In Kolender,
`
`the Supreme Court developed a two-prong test for facial vagueness of
`
`a penal statute. In order to determine whether a statute has defined a
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`criminal offense with sufficient vagueness, the Kolen der Court
`
`indicated that a determination must be made that the statute's
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`language identifies to an ordinary person what conduct is prohibited,
`
`and that the statute does not encourage arbitrary and discriminatory
`
`enforcement. 461 U.S. at 2927-2928.
`
`The Skilling Court used the language of the federal statute,
`
`viewed against the prism of the legislative history of that statute, to
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`determine that the federal statute should be narrowly construed,
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`criminalizing only fraudulent schemes which relate directly to "bribes
`
`and kickbacks." 130 S.Ct. at 2928, 2931. The Skilling Court's limiting
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`language was inserted to preserve the intent of the statute without
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`"transgressing constitutional limitations." (Id. )
`
`27
`
`

`

`The Skilling Court went on to reject the attempt in that case by
`
`the government to expand the reach of the Honest Services Statute.
`
`The Court declined to extend the reach of the statute to include
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`"undisclosed self dealing by a public official." (Id. at 2932). The Court
`
` said that-an attcmpt to incrcase the-reach of the statute to include
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`official action by the elected official which furthers his own financial
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`interests, would raise the due process concerns underlying the
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`vagueness doctrine. (Id. at 2931-32).
`
`For that reason, the Skilling Court refused to adopt the
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`government's proposed expansion of the statute, and repeatedly
`
`limited the scope of that statute to "bribery and kickback" schemes.
`
`(Id. at 2931, n. 42). In so holding, the Supreme Court made it clear
`
`that expanding the scope of the statute beyond bribery and kickbacks
`
`in attempting to criminalize any "undisclosed self dealing by a public
`
`official. ....would raise serious constitutional issues." (Id. at 2933, n.
`
`44). The Skilling holding was premised on the notion that
`
`criminalizing undisclosed self dealing by a public official would require
`
`statutory definiteness and specificity. The Court's significant concern
`
`was than an attempt to create a class of prosecu