Com. v. Habay
| Decision Date | 10 October 2007 |
| Docket Number | No. 1518 WDA 2006.,1518 WDA 2006. |
| Parties | COMMONWEALTH of Pennsylvania, Appellee v. Jeffrey E. HABAY, Appellant. |
| Court | Pennsylvania Superior Court |
Kenneth A. Snarey, Pittsburgh, for appellant.
Anthony J. Krastek, Jr., Asst. Dist. Atty., for Com., appellee.
¶ 1 This case is a direct appeal from judgment of sentence. The issues are: (1) whether Count 2 of the criminal information (65 Pa.C.S.A. § 1103(a), conflict of interest) should have been dismissed because Count 1 (18 Pa.C.S.A. § 3926(b), theft of services) was a specific statute applicable to Appellant's conduct while Count 2 was a general statute; (2) whether there was sufficient evidence to support the verdict; (3) whether the verdict was against the weight of the evidence; (4) whether the conflict of interest statute is void for vagueness; (5) whether the conflict of interest statute is overly broad. We affirm the judgment of sentence.
¶ 2 Appellant was a member of the Pennsylvania House of Representatives. The Commonwealth charged him with theft of services and conflict of interest, alleging he diverted services of employees in his legislative office for his own private benefit and/or pecuniary gain. He proceeded to a jury trial, after which he was acquitted of theft and convicted of conflict of interest. Appellant was later sentenced. He now appeals.
¶ 3 Appellant first contends the theft count was a specific statute applicable to the facts of his case and, as such, the Commonwealth should have been limited to a prosecution under that count while the conflict of interest count, being a general provision covering Appellant's conduct, should have been dismissed. He relies on 1 Pa.C.S.A. § 1933, which provides:
Whenever a general provision in a statute shall be in conflict with a special provision in the same or another statute, the two shall be construed, if possible, so that effect may be given to both. If the conflict between the two provisions is irreconcilable, the special provisions shall prevail and shall be construed as an exception to the general provision, unless the general provision shall be enacted later and it shall be the manifest intention of the General Assembly that such general provision shall prevail.
¶ 4 Two statutes conflict when the same facts constituting one offense also constitute the other. Commonwealth v. Parmar, 551 Pa. 318, 710 A.2d 1083, 1086 (1998). Thus, pursuant to 1 Pa.C.S.A. § 1933, the Pennsylvania Supreme Court has precluded prosecutions under a general statute where the general statute and a specific one both cover the same criminal acts. Commonwealth v. Karetny, 583 Pa. 514, 880 A.2d 505, 521 (2005).1
¶ 5 Ultimately, the task when evaluating a claim such as Appellant's is to determine whether the Legislature has set forth a specific penal provision "addressing a distinct subset of circumstances within the general category of criminal activity." Id. If so, then the Legislature has created a specific statute that is to be applied rather than the more general provision.
¶ 6 The relevant portions of the theft statute read as follows:
(b) Diversion of services.—A person is guilty of theft if, having control over the disposition of services of others to which he is not entitled, he knowingly diverts such services to his own benefit or to the benefit of another not entitled thereto.
* * * * * *
(h) Definitions.—As used in this section, the following words and phrases shall have the meanings given to them in this subsection:
"Service." Includes, but is not limited to, labor, professional service, transportation service, the supplying of hotel accommodations, restaurant services, entertainment, cable television service, the supplying of equipment for use and the supplying of commodities of a public utility nature such as gas, electricity, steam and water, and telephone or telecommunication service. The term "unauthorized" means that payment of full compensation for service has been avoided, or has been sought to be avoided, without the consent of the supplier of the service.
18 Pa.C.S.A. § 3926(b), (h).
¶ 7 The conflict of interest statute states, in pertinent part:
(a) Conflict of interest.—No public official or public employee shall engage in conduct that constitutes a conflict of interest.
¶ 8 Public official and conflict of interest are defined in the following manner:
"Public official." Any person elected by the public or elected or appointed by a governmental body or an appointed official in the executive, legislative or judicial branch of this Commonwealth or any political subdivision thereof, provided that it shall not include members of advisory boards that have no authority to expend public funds other than reimbursement for personal expense or to otherwise exercise the power of the State or any political subdivision thereof.
"Conflict" or "conflict of interest." 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 or a business with which he or a member of his immediate family is associated.
¶ 9 The evidence revealed that Appellant, in his elected capacity, controlled the services of the persons employed by the state in his legislative office. He wrongfully diverted those services for his own pecuniary gain. Both the theft and the conflict of interest statute prohibit such conduct. However, the conflict of interest provision is limited to public officials acting through the authority of their offices. Thus, the conflict statute is a specific penal provision addressing a distinct subset of circumstances (i.e., public officials acting through the authority of their offices) within the general category of criminal activity. Consequently, Appellant was convicted under the more specific provision, not the more general one. His claim fails.
¶ 10 When evaluating a sufficiency claim, our standard is whether, viewing all the evidence and reasonable inferences in the light most favorable to the Commonwealth, the factfinder reasonably could have determined that each element of the crime was established beyond a reasonable doubt. Commonwealth v. Pitner, 928 A.2d 1104, 1108 (Pa.Super.2007). This Court considers all the evidence admitted, without regard to any claim that some of the evidence was wrongly allowed. Id. We do not weigh the evidence or make credibility determinations. Id. Moreover, any doubts concerning a defendant's guilt were to be resolved by the factfinder unless the evidence was so weak and inconclusive that no probability of fact could be drawn from that evidence. Id.
¶ 11 The conflict of interest statute does not contain a mens rea requirement. However, the culpability requirements of 18 Pa.C.S.A. § 302 apply to all crimes including violations of 65 Pa.C.S.A. § 1103. See Parmar, 710 A.2d at 1089. Under 18 Pa.C.S.A. § 302, crimes without specified mental states occur when the actor's conduct is intentional, knowing or reckless. Additionally, when the proscribed conduct necessarily involves deceitful acts and acts of fraud, criminal intent or guilty knowledge is an essential element of the offense. Parmar, 710 A.2d at 1090. The conflict of interest violation involves deceiving the state for personal benefit. See id. Accordingly, to prove that a defendant violated the conflict of interest statute, the Commonwealth must show beyond a reasonable doubt: (1) the defendant was a public official; (2) the defendant knowingly or intentionally used the authority of his or her office for private pecuniary gain; and (3) the gain was more than de minimis. 65 Pa.C.S.A. § 1103(a); 18 Pa.C.S.A. § 302.
¶ 12 As noted by the trial court, the evidence demonstrated that Appellant, in his official capacity as a state legislator, directed several state employees to conduct political work, such as fundraising efforts, for him. He did so at times when the employees were being paid by the taxpayers to perform work for constituents. As a result of the employees conducting the aforesaid political work, Appellant derived the benefit of a substantial number of hours of labor for which he otherwise would have needed to pay. Additionally, the employees utilized Appellant's legislative office and office equipment in the course of those political endeavors. Consequently, Appellant received the benefit of using those resources while not having to pay for them.
¶ 13 For example, trial testimony revealed that Rebecca Coleman was employed at Appellant's legislative office from June 1999 through January 2000. At Appellant's direction, she worked on two political fundraisers for him. In the course of doing so, she utilized Appellant's legislative office facilities and equipment such as the telephone.
¶ 14 She worked on the fundraisers for roughly one month each. During the first two weeks of her employment, she devoted substantially all of her work time to the first fundraiser. Thereafter, until the completion of that fundraiser in July 1999, she continued to devote the majority of her work day to the same fundraising effort.
¶ 15 Appellant placed Coleman in charge of the second fundraiser, and, for approximately one month, she dedicated approximately half her working time to that undertaking.
¶ 16 Margery Dillenburg,...
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