Criminal Conflict of Interest • Constitutional Separation of Powers • Void for Vagueness • Legality of Sentence

Commonwealth v. Berry, PICS Case No. 17-1184 (Pa. Super. July 10, 2017) Olson, J. (19 pages).

Criminal conflict of interest statute did not violate separation of powers, where it did not attempt to regulate conduct specifically regulated as part of the practice of law. Judgment of sentence affirmed, case remanded for resentencing.

Willis Berry, a former trial court judge, appealed from the judgment of sentence following his conviction for criminal conflict of interest. Appellant, prior to and after becoming a trial court judge, owned and operated numerous multi-unit rental properties. Many of the properties were in poor condition, and over a period of 10 years appellant was issued over 70 citations for violations of safety, building, and licensing codes. Appellant used his judicial office and resources to assist him in the operation of his properties, including engaging the services of his secretary to represent him the in the operation of his rental properties.

Appellant was charged with conflict of interest and theft of services. After the trial court denied his motion to dismiss, appellant was found guilty of both offenses and sentenced to an aggregate term of 3 years’ probation and a deferred determination regarding the amount of restitution owed by appellant. Appellant appealed, arguing that the trial court erred in denying his motion to dismiss on the grounds that his charges were unconstitutional as violating the separation of powers, void for vagueness, and overbroad by impacting his freedom of speech.

As to appellant’s first argument, the court noted that appellant could only succeed in his facial challenge to the constitutionality of his charges by establishing that no set of circumstances existed under which the statutes would be constitutional. The court rejected appellant’s contention that certain criminal statutes, applied to members of the judiciary, violated separation of powers, ruling that the statutes did not target the practice of law, over which the courts had exclusive control. Although the court acknowledged that appellant’s conduct violated the code of professional conduct by bringing the judiciary into disrepute, it held that such a broad violation was insufficient to support a finding that appellant’s conviction related to a precise form of conduct regulated by the cords. Moreover, the court noted that appellant’s charges of conviction applied to all public employees, not just attorneys and judges.

The court further rejected appellant’s overbroadness and void for vagueness arguments. The court held that appellant’s overbroadness argument was without merit, because his charge of conviction had already been held to not infringe upon freedom of speech. Thus, the court further held that appellant’s void-for-vagueness could only be examined as an as-applied rather than facial challenge. However, the court also rejected appellant’s contention that the charge was unconstitutionally vague because the term “private pecuniary gain” and “de minimis economic impact” did not provide adequate notice of what conduct was criminalized. The court held that the pecuniary benefits obtained by appellant through his office were not vague, since he utilized official free postage, office supplies, and telephone and internet service, did not need to rent and office, and used his secretary as a de facto employee for his private business, as any ordinary person would know these to be pecuniary benefits.

The court rejected appellant’s argument that the trial court erred in limiting his examination of appellant’s counsel, who represented him before the Court of Judicial Discipline, regarding prosecution following proceedings before the CJD. The court agreed that the testimony was irrelevant, since whether there was an agreement to bar appellant’s prosecution was a legal question for the court and not the jury to decide.

Finally, the court remanded for resentencing, ruling that appellant’s sentence was illegal insofar as it ordered him to pay restitution, since the commonwealth was not a victim eligible for restitution.