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HomeMy WebLinkAbout00-1056 CriminalCOMMONWEALTH RICHARD CHARLES KELLEY, SR. IN RE: IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA 00-1056 CRIMINAL TERM OPINION PURSUANT TO PENNSYLVANIA RULE OF APPELLATE PROCEDURE 1925 Bayley, J., May 27, 2003:-- Defendant, Richard C. Kelley, Sr., was convicted by a jury on November 21, 2002 of bribery,~ restricted activities - conflict of interest,2 restricted activities - accepting improper influence,3 and criminal conspiracy to those three crimes.4 Defendant was found not guilty of failing to file a required statement of financial interest.5 On December 31, 2002, on the count of bribery, defendant was sentenced to pay the costs of prosecution, make restitution to the Borough of Shippensburg in the amount of $177,400, and undergo imprisonment in the Cumberland County Prison for a term of not less than six months or more than twenty-three months. On the count of restrictive activities - conflict of interest, defendant was sentenced to pay the costs of prosecution, and pursuant to 65 P.S. 409(C),6 pay the Borough of Shippensburg treble damages in the amount of '18 Pa.C.S. § 4701(a). :65 P.S. 403, now repealed and codified at 65 Pa.C.S. § 1103(a). ~65 P.S. 403, now repealed and codified at 65 Pa.C.S. § 1103(c). 418 Pa.C.S. § 903(a). 565 P.S. 404, now repealed and codified at 65 Pa.C.S. § 1104(a). 6 Now repealed and codified at 65 Pa.C.S. § 1109(c). 00-1056 CRIMINAL TERM $130,278. On the counts of restricted activities - accepting improper influence, and criminal conspiracy, defendant was assessed the costs of prosecution. Defendant filed a direct appeal from his judgment of sentence to the Superior Court of Pennsylvania. He filed a concise statement of matters complained of on appeal in which he raises nine allegations of error. The evidence at trial in a light most favorable to the Commonwealth is as follows.7 Defendant was employed by the Borough of Shippensburg, Cumberland County, as foreman of the Borough Water Department. His job included overseeing a 3,400 acre watershed of the Borough's Water Authority located in Gunter Valley, Franklin County. The Authority came under a directive from the Commonwealth to cut and remove some dead trees and fallen timber in the watershed. In 1991, Kelley was instructed by his employer to choose a contractor and have this work done. The consideration for the contractor was that the timber would be removed in kind without cost. Kelley chose Donald Johnson, an operator of a sawmill, to do the work. Over the next several years, defendant allowed Johnson to cut live timber, as well as dead timber in Gunter Valley. Defendant suggested to Johnson that he give him money. Johnson paid Kelley $42,676 for the live timber he removed from Gunter Valley. As Johnson performed the work, the money, which defendant wanted in cash, was paid to him weekly by Johnson at his mill in 100, 50 and 20 dollar bills. The value of live timber Johnson cut and removed from Gunter Valley was $177,400. Trooper Michael Gayman of the Pennsylvania State Police, interviewed defendant on Commonwealth v. Rochelle, 461 Pa. 340 (1975). -2- 00-1056 CRIMINAL TERM March 7, 1995. Defendant admitted to the trooper that he (1) received money from Donald Johnson, usually 50 and 100 dollar bills in an envelope, (2) knew what he was doing was wrong and that it was going to get him in trouble, and (3) thought it was a bribe for Johnson to pay him to remove timber from Gunter Valley. Defendant told the trooper that he spent the money that he received from Johnson, although he said that the total amount was close to $5,000. I. WAS THE EVIDENCE SUFFICIENT TO SUSTAIN THE CONVICTION FOR BRIBERY AND CONSPIRACY TO BRIBERY? Bribery under 18 Pa.C.S. Section 4701 (a)is proven if defendant was a public servant who accepted money from Donald Johnson as consideration for a violation of a known legal duty as a public servant. In Commonwealth v. Johnson, 719 A.2d 778 (Pa. Super. 1998), the Superior Court of Pennsylvania stated: To sustain a conviction for criminal conspiracy, the Commonwealth must establish that the defendant (1) entered an agreement to commit or aid in an unlawful act with another person or persons, (2) with a shared criminal intent and, (3) an overt act was done in furtherance of the conspiracy. This overt act need not be committed by the defendant; it need only be committed by a co- conspirator. The essence of a criminal conspiracy is a common understanding, no matter how it came into being, that a particular criminal objective be accomplished. Therefore, a conviction for conspiracy requires proof of the existence of a shared criminal intent. An explicit or formal agreement to commit crimes can seldom, if ever, be proved and it need not be, for proof of a criminal partnership is almost invariably extracted from the circumstances that attend its activities. Thus, a conspiracy may be inferred where it is demonstrated that the relation, conduct, or circumstances of the parties, and the overt acts of the co-conspirators sufficiently prove the formation of a criminal confederation. The conduct of the parties and the circumstances surrounding their conduct may create a web of evidence linking the -3- 00-1056 CRIMINAL TERM accused to the alleged conspiracy beyond a reasonable doubt. (Citations omitted.) Defendant argues in his brief that the evidence "established nothing more than any monies paid to the Defendant were a kind of after-the-fact courtesy, completely unrelated to any decision to have [Johnson] do the job." The Commonwealth proved that, (1) defendant was a public servant; (2) he was directed to have dead and fallen timber owned by the government removed from Gunter Valley; (3) he choose the contractor, Donald Johnson, who was to do the work by keeping fallen and dead timber in kind without cost; (4) he sought money from Johnson to cut live timber which defendant accepted and kept for his personal use; and (5) the cash totaling $42,676 was paid weekly while Johnson cut and removed live timber from Gunter Valley. That constituted proof of bribery and conspiracy to bribery. II. WAS THE EVIDENCE SUFFICIENT TO SUSTAIN THE CONVICTION FOR THE TWO ETHICS ACT OFFENSES AND CONSPIRACY TO COMMIT THOSE OFFENSES? Defendant was convicted of two ethics offenses and conspiracy to commit those offenses: (1) a conflict of interest in violation of 65 P.S. Section 403(a),8 and (2) accepting improper influences in violation of 65 P.S. Section 403(c).9 The jury was charged as follows: 1. A prohibited conflict of interest is defined as: use by a public employee of the authority of his employment through his holding employment for the private pecuniary benefit of himself. This term does not include action having only a de minimis, which means insignificant, economic impact. 2. Accepting improper influence is defined as: no public employee shall solicit or accept anything of monetary value, 8Now repealed and codified at 65 Pa.C.S. § 1103(a). 9 Now repealed and codified at 65 Pa.C.S. § 1103(c). -4- 00-1056 CRIMINAL TERM including a gift, loan or reward based on any understanding of that public employee that the official action or judgment of the public employee would be influenced thereby. Accordingly, in order to convict defendant of the crime of engaging in conduct that constitutes a conflict of interest, you must be satisfied beyond a reasonable doubt that, in his capacity as a public employee, he intentionally, knowingly, recklessly or negligently used the authority of his employment through his holding employment for the private pecuniary benefit of himself. In order to convict defendant of the crime of accepting improper influences, you must be satisfied beyond a reasonable doubt that as a public employee, he intentionally, knowingly, recklessly or negligently solicited or accepted anything of monetary value, including a gift, loan or reward, based on any understanding of himself that his official action or judgment as a public employee would be influenced thereby. (Emphasis added.) In his brief, defendant argues that "For the same reasons that the evidence was insufficient to sustain the bribery and conspiracy convictions, so too was it insufficient to sustain the convictions for [the] restricted activities [offenses] and conspiracy." Clearly, the Commonwealth proved that defendant, a public employee, used the authority of his employment to obtain from Donald Johnson $42,676 for himself, and that he solicited and accepted that money with the understanding that he would exercise his judgment in allowing Johnson to cut and remove live timber from Gunter Valley. That evidence was sufficient to prove the two Ethics Act violations and a criminal conspiracy to commit them. iii. WAS THERE REVERSIBLE ERROR IN THE ACCOMPLICE CHARGE TO THE JURY? It is reversible error for the court not to give an accomplice charge if the evidence permits an inference that a witness was an accomplice. Commonwealth v. Franklin, 397 Pa. Super. 265 (1990). Donald Johnson was an accomplice of defendant. The jury was charged: -5- 00-1056 CRIMINAL TERM Now, the Commonwealth called Donald Johnson as a witness who under its theory of the case was an accomplice of defendant. Donald Johnson was never charged with any crimes for which the Commonwealth maintains he was an accomplice and can no longer be charged with any such crimes because the statute of limitations has run against him. The statute of limitations has not run against the defendant because he was a public employee of the Borough of Shippensburg at the time it is alleged that he committed the crimes charged, and statute of limitations, which is the outside limit, as I told you earlier, upon which any criminal charges can be brought is different for individuals versus individuals in a public capacity or an official or elected capacity. When a Commonwealth witness was so involved in the crimes charged that the witness was an accomplice, the testimony of the witness must be judged by special cautionary rules. One, you should review the testimony of an accomplice with disfavor because it comes from a corrupt source. Two, you should examine the testimony of an accomplice closely and accept it only with care and caution. Three, you should consider if the testimony of an accomplice is supported in whole or in part by other evidence. Ultimately you must determine the credibility to give to the testimony of all witnesses, including that of an accomplice. You may find defendant guilty on the basis of accomplice testimony alone if, after judging the credibility of an accomplice pursuant to the general rules that I have outlined to you, you are satisfied that the Commonwealth has proven beyond a reasonable doubt that defendant committed every element of the crime charged. (Emphasis added.) There was no objection at trial to this charge. An issue raised for the first time on direct appeal is waived. Commonwealth v. Rounds, 580 A.2d 348 (1986). New counsel on appeal suggests that the charge constitutes reversible error because it did not track word-for-word the Section 4.01 Pennsylvania Standard Suggested Jury Instruction. On the merits, the charge adequately described what an accomplice is, see Commonwealth v. Manchas, 430 Pa. Super. 63 (1993). The jury was instructed to review the testimony of Donald Johnson with disfavor because it came from a corrupt source, to examine it -6- 00-1056 CRIMINAL TERM closely and accept it only with care and caution. In addition, the jury was charged that the statute of limitations had run against Donald Johnson and that he could no longer be charged for his criminal conduct. This was an adequate charge as to the accomplice testimony by Donald Johnson. IV. MUST THE CONVICTION FOR THE TWO ETHICS ACT OFFENSES AND CONSPIRACY TO COMMIT THOSE OFFENSES BE ARRESTED BECAUSE OF AN EX POST FACTO VIOLATION? In Commonwealth v. Fisher, 741 A.2d 1234 (Pa. 1999), the Supreme Court of Pennsylvania set forth that a law is ex post facto in the following situations: (1) it makes an act criminal which was not criminal before, (2) it aggravates the crime, (3) it makes a punishment greater than it was when it was committed, or (4) it alters the rules of evidence. Defendant argues in his brief that 65 P.S. Section 403(a) and (c), which were in effect during the time the criminal offenses for which he was convicted occurred, and which were later repealed and codified in 65 Pa.C.S. Sections 1103(a) and (c), were "not previously criminalized but merely handled by the State Ethics Commission, and that the penalties were increased." That is an incorrect statement of the law. The penalty provision was at 65 P.S. Section 409(a), which provided: Any person who violates the provisions of section 3(a), (b) and (c) is guilty of a felony and shall be fined not more than -7- 00-1056 CRIMINAL TERM $10,000 or imprisoned for not more than five years, or be fined and imprisoned,l° Defendant, in his brief, argues alternatively, citing Commonwealth v. Lussi, 757 A.2d 361 (Pa. 2000), "that the bribery and conspiracy convictions must be dismissed because they were generalized prosecutions whereas the Commonwealth was obliged to prosecute him solely on the specific ethics charges." This issue is raised for the first time in this direct appeal. It is waived. V. WAS IT REVERSIBLE ERROR FOR FAILING TO DISMISS THE CHARGES FOR A VIOLATION OF THE COMPULSORY JOINDER RULE? Between June, 1992 and March, 1995, in connection with his official position with the Borough of Shippensburg, defendant accepted money from developers to privately hookup 132 water taps. As a result of that conduct, he was convicted of theft for failure to make required disposition of those funds. On October 11, 2000, he filed a motion to dismiss the within charges alleging, inter alia, a violation of the compulsory joinder rule in Section 110 of the Crimes Code. 18 Pa.C.S. § 110. Defendant maintained that this case should have been joined to the water tap case. The motion was denied by an order, supported by a written opinion, entered by Hess, J., on April 11, 2001. On April 24, 2001, defendant filed a direct appeal from that order to the Superior Court of Pennsylvania. On March 14, 2002, the Superior Court, supported by a Now repealed and codified at 65 Pa.C.S. § 1109(a) which provides: Any person who violates the provisions of section 1103(a), (b) and (c) (relating to restrictive activities) commits a felony and shall be sentenced to pay a fine of not more than $10,000 or to imprisonment for not more than five years, or both. -8- 00-1056 CRIMINAL TERM memorandum opinion, affirmed the order on the merits.~ Defendant again raises this issue in this direct appeal. The issue has been decided. As set forth in the opinion of the Superior Court of Pennsylvania, it is without merit. VI. MUST DEFENDANT'S CONVICTIONS BE REVERSED BECAUSE OF A DUE PROCESS VIOLATION FOR PRE- ARREST DELAY? In Commonwealth v. Scher, 803 A.2d 1204 (Pa. 2002), the Pennsylvania Supreme Court stated: [w]e hold that in order to prevail on a due process claim based on pre-arrest delay, the defendant must first show that the delay caused him actual prejudice, that is, substantially impaired his or her ability to defend against the charges. The court must then examine all of the circumstances to determine the validity of the Commonwealth's reasons for the delay. Only in situations where the evidence shows that the delay was the product of intentional, bad faith, or reckless conduct by the prosecution, however, will we find a violation of due process. Negligence in the conduct of a criminal investigation, without more, will not be sufficient to prevail on a due process claim based on pre-arrest delay. (Footnote omitted.) (Emphasis added.) No motion was filed in the trial court alleging relief based on a due process violation for pre-arrest delay. This issue is raised for the first time in this direct appeal. It is waived. Defendant did file a pretrial motion seeking a dismissal of the charges for an alleged violation of Pa.R. Crim. P. 315(a), which provides: Upon motion and a showing that an information has not been filed within a reasonable time, the court may order dismissal of a prosecution, or in lieu thereof, make such other order as shall be appropriate in the interest of justice. That motion was denied by an order of April 11, 2001, supported by a written 799 A.2d 701 (Pa. Super. 2002). -9- 00-1056 CRIMINAL TERM opinion.~2 The issue has not been raised in this appeal. VII. WAS IT REVERSIBLE ERROR NOT TO DISMISS THE CHARGES BECAUSE OF A GROSS ABUSE OF CRIMINAL PROCESS? The inculpatory statement that defendant gave to Trooper Michael Gayman on March 7, 1995, was made after the trooper had conducted an investigation and arrested defendant on that date for the theft of timber in Franklin County. The charges were withdrawn by the trooper on April 28, 1995, at the direction of the Franklin County District Attorney. Trooper Gayman ultimately convinced the Cumberland County District Attorney to conduct an investigation as to defendant's conduct in his capacity as a public official of the Borough of Shippensburg. An investigation was conducted by a Cumberland County Investigating Grand Jury. A presentment was signed on April 13, 2000. It was unsealed on April 17, 2000, and a complaint was filed that day before a District Justice. An information was filed by the District Attorney on June (5, 2000. Defendant maintains that this prosecution constitutes a due process violation because there was a gross abuse of criminal process. See Commonwealth v. Mance, (552 A.2d 299 (Pa. 1995). He seems to be arguing that Trooper Gayman should have been satisfied when the Franklin County District Attorney was unwilling to prosecute defendant for theft of the timber in Gunter Valley, and therefore, it was an abuse of discretion for him to seek to ~: Other claims raised in an omnibus pretrial motion, and decided adversely to defendant in the order of April 11, 2001, were (1) double jeopardy, (2) abuse of criminal process, (3) defect in the information, (4) Ethics Act violations as ex post facto, (5) statute of limitations, and (7) motion to suppress defendant's statements to Trooper Gayman on March 7, 1995. -10- 00-1056 CRIMINAL TERM have the Cumberland County District Attorney conduct an investigation, and it was then an abuse of criminal process for the District Attorney to charge him for criminal offenses committed in his capacity as a public official in the Borough of Shippensburg, Cumberland County. What happened in Franklin County is of no import because it does not relate to the Cumberland County District Attorney's decision to investigate and prosecute crimes that occurred in Cumberland County. Defendant's allegation of gross abuse of criminal process is wholly without merit. Viii. DOES THE RECORD SUPPORT THE ORDER OF RESTITUTION OF $177,400 ON THE COUNT OF BRIBERY? Restitution is to be ordered when the victim suffers a loss that forms the basis for the act for which defendant is convicted. Commonwealth v. Dohner, 725 A.2d 822 (Pa. Super. 1999). The amount of restitution must be for the direct loss or damage sustained and must be supported by the record. Commonwealth v. Wright, 722 A.2d 157 (1998). The restitution of $177,400 was based on the loss caused by the removal by Donald Johnson of live timber from Gunter Valley as a result of the bribe of $42,676 he paid to defendant. The restitution was based on the evidence presented through Boyd Ney, a forestry consultant who manages woodlands for private individuals and government watershed. Ney has 30 years in the business which includes marketing and selling timber. Throughout his career, he has worked in Gunter Valley. He was aware of the need to cut dead trees and remove fallen timber that resulted in defendant obtaining Donald Johnson to do the work. He was familiar with the timber that was damaged, mostly by gypsy moth, and the timber that had been -11- 00-1056 CRIMINAL TERM cut in the valley before that. After it came to light that Donald Johnson had cut live timber, Ney conducted a survey of the timber resources in the valley. It was his conclusion that the value of the live timber that was missing that Johnson removed was $177,400, which is the amount a timber company would have paid the government for its removal. Defendant argues that the method of setting the loss by Ney was too speculative, and that he was a hostile witness. Ney's credibility was an issue for the jury. We find from a review of Ney's entire testimony that he had the expertise and knowledge of Gunter Valley to determine the loss and monetary value of the live timber cut by Donald Johnson. Defendant's arguments are without merit. IX. DOES THE RECORD SUPPORT THE IMPOSITION OF TREBLE DAMAGES OF $130,278 ON THE CONVICTION FOR RESTRICTED ACTIVITIES - CONFLICT OF INTEREST? The award of treble damages was made pursuant to 65 P.S. Section 409(c), that provides: (c) Any person who obtains financial gain from violating any provision of this act, in addition to any other penalty provided by law, shall pay a sum of money equal to three times the amount of the financial gain resulting from such violation into the State Treasury or the treasury of the political subdivision. Treble damages shall not be assessed against a person who acted in good faith reliance on the advice of legal counsel. (Emphasis added.)~3 Defendant repeats his argument that the ethics violations for which he was convicted are ex post facto. For the reasons previously stated they are not. Defendant further argues that there was insufficient evidence to support his having received more Now repealed and codified at 65 Pa.C.S. § 1109(c). -12- 00-1056 CRIMINAL TERM than $5,000 from Donald Johnson, as he testified, versus the $42,676 that Donald Johnson testified that he paid defendant for the live timber he removed from Gunter Valley. That was an issue of credibility. The record supports the order of restitution of treble damages to the Borough of Shippensburg based on the testimony of Donald Johnson as to the exact amount he paid to defendant to cut live timber in Gunter Valley.TM (Date) Jaime Keating, Esquire For the Commonwealth William Costopoulos, Esquire For Defendant :sal Edgar B. Bayley, J. ,4 We note that as a result of an error on the pre-sentence investigation report setting forth that defendant's gain from the bribe of Donald Johnson was $43,426, treble damages of $130,278 were awarded to the Borough of Shippensburg. Although not raised on appeal, the record reflects that Donald Johnson paid a bribe to Richard Kelley totaling $42,676. That figure trebled is $128,028, which is the amount of restitution that should have been awarded to the Borough of Shippensburg. -13-